Re: Docket No. CEQ-2018-0001, Advanced Notice of Proposed Rulemaking (ANPRM), Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act

Dear Ms. Neumayr:

The undersigned members of the Choose Clean Water Coalition urge the Council on Environmental Quality (CEQ) to withdraw the ANPRM and retain the existing CEQ regulations implementing the National Environmental Policy Act (NEPA). The CEQ regulations establish common sense procedures and definitions that continue to serve the Chesapeake Bay watershed and the nation well. Changes to the regulations are unnecessary and would create significant inefficiencies and delays by upending decades of well-settled requirements and approaches.

The Choose Clean Water Coalition spans the six states, Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia that make up the Chesapeake Bay watershed. The coalition’s members range in size and scope from national to regional to the most local level, but share the vision of vibrant clean rivers and streams in all of the Chesapeake region’s communities. One of the main objectives of the coalition is to uphold bedrock environmental laws that protect our waterways, including NEPA.

The Choose Clean Water Coalition has a key interest in ensuring that the NEPA environmental review process works well. NEPA is the fundamental tool for ensuring proper vetting of the impacts of major federal projects on waterways and communities, for identifying less environmentally damaging alternatives, and for giving the public a voice on impactful federal actions. NEPA improves project planning, including reducing adverse environmental impacts of federal actions and by improving the quality of federal restoration projects. In this vein, we urge CEQ to withdraw the ANPRM. Instead of considering or conducting a rewrite of the NEPA regulations, CEQ should instead undertake a systematic initiative to enforce the existing regulations. CEQ should also use its leadership role to ensure that agencies have the resources, training, and leadership needed to properly implement NEPA.

Comments

The existing NEPA regulations establish a uniform approach to efficiently implementing NEPA’s important goals and requirements through common sense procedures and definitions that, among other things, ensure meaningful opportunities to engage the public and other federal, state, tribal and local agencies in the NEPA process. Congress enacted NEPA to “declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.”[1]

These regulations were carefully developed with significant public input; they were the product of extensive public involvement and receptivity to the concerns of all involved segments of American society. When finalized in 1978, they were greeted with praise from a range of stakeholders, from the U.S. Chamber of Commerce to the National Governors Association to the Natural Resources Defense Council and the Sierra Club.[2] That inclusive process is in part responsible for the regulations having existed for four decades and through the administrations of seven Presidents with only one substantive amendment to one section.

Because of this, changes to the existing CEQ NEPA regulations are unnecessary. Any such changes would also be unwise. They would undermine the efficiency of the NEPA process by upending decades of well-settled requirements and approaches. NEPA has existed for forty years, wherein it has faced judicial review that militates in favor of keeping changes to the regulations to necessary minimums. There exists nationwide judicial experience with the law and the regulations which substantive changes can only undo. New provisions can only lead to new and expanded litigation. Several courts have stated the importance of NEPA, like “NEPA is more than a technical statute of administrative procedure. It is a commitment to the preservation of our natural environment. The statute’s language conveys the urgency of that task.”[3] Further, any amendments that are made must be adopted through the Administrative Procedures Act (APA) notice and comment provisions so as to preserve the “substantial deference” which the Supreme Court has accorded them.[4]

CEQ developed the regulations to provide a uniform approach to promote decision-making that reflects the policies set forth in NEPA and to include the public and other federal, state, tribal and local agencies in that process. The regulations reflect decades of case law developed through the federal courts, as discussed above. Additionally, the regulations reflect a concerted effort to expedite the process without losing either substantive value or public involvement. Because of this concerted effort, we believe that changes to any of the CEQ NEPA regulations are unwarranted. We highlight in particular the following three regulations that should remain intact because they are fundamental to the importance of NEPA:

Actions causing environmental impact should not be exempted from NEPA.

The Supreme Court has found that the preparation of an environmental impact statement promotes NEPA’s broad environmental objectives in two primary ways: “It ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decision-making process and the implementation of that decision.”[5]

The requirement to fully examine alternatives should not be eliminated.

The statute calls for a consideration of alternatives, stressing its importance as NEPA is not intended to just be an accounting of the impacts of something proposed, but an examination of other ways to meet a purpose and need that could have fewer impacts and often lower economic costs. The regulation (§ 1502.14) regarding alternatives has, since its promulgation, been central in ensuring that agencies rigorously explore reasonable alternatives and make informed choices. It is thorough and effective and should not be changed. Altering it would almost certainly weaken NEPA and have a deleterious impact on wildlife and the environment by allowing agencies to avoid adequately and rigorously exploring less impactful ways to meet the purpose and need and to avoid asking the critically important and basic question of whether no action would be a wiser course of action.

The public’s input into the NEPA process should not be reduced.

It is important to note that “[C]onsideration of the impacts of proposed government actions on the quality of the human environment is essential to responsible government decision-making. Government projects and programs have effects on the environment with important consequences for every American, and those impacts should be carefully weighed by public officials before taking action. Environmental impact analysis is thus not an impediment to responsible government action; it is a prerequisite for it.[6]

Last, the NEPA review process has been a critical component to the protection of the Chesapeake Bay over the last forty years. Numerous organizations - and members of the public - have actively engaged in the NEPA processes for the Intercounty Connector, Chesapeake Bay Crossing Study (a two-tiered Environmental Impact Statement) and countless other Environmental Impact Statements for major federal actions affecting the Bay.

In 2008, the Mid-Atlantic Power Pathway (MAPP) was proposed by Pepco. This 152-mile extra-high voltage transmission line would have extended from Possum Point, VA to Southern Maryland under the Chesapeake Bay, and across the lower Eastern Shore into Southern Delaware. There were major environmental concerns related to this project as MAPP would have been the first time transmission cables crossed the Chesapeake Bay from shore to shore, impacting fish species and causing other disturbances to the Bay. When Pepco filed for a loan from the federal government, this triggered the need for an Environmental Impact Statement under NEPA. There were public hearings where residents voiced their concerns and also proposed alternatives to this project. As the public became more and more opposed to the project, elected officials began to ask questions and Pepco reneged. The project was cancelled in 2012.[7

Most recently, our members have been engaged in the various environmental review processes for the Atlantic Coast Pipeline. This project will cross more than 300 miles in the State, with over 890 crossings of rivers and streams that will lead to erosion and sedimentation in those waterbodies. The construction of the pipeline will require Dominion to clear 5,000 acres of land, including 3,000 acres of forest and 300 acres of wetlands. Additionally, much of the construction will traverse rugged terrain through steep slopes and karst geology characterized by sinkholes and caves that are hydrologically interconnected underground, threatening those water resources.[8] The environmental impacts associated with this project are substantial and a full and robust NEPA process is required to ensure that the agencies involved conduct a complete analysis of these impacts.

We anticipate other major federal actions in the years to come that will impact the Chesapeake Bay watershed.

The existing CEQ NEPA regulations effectively address the objectives identified in the many questions posed by the ANPRM. We urge CEQ to withdraw the ANPRM and retain the existing CEQ regulations implementing NEPA.

Re: Improving the Phase III WIP process and local government engagement

Dear Secretary Grumbles,

Thank you for the opportunity to provide input regarding the structure and content of local participation in Maryland’s Phase III Watershed Implementation Plan (WIP). A subset of Choose Clean Water Coalition members and other concerned partners appreciate the ongoing in-person and in-depth discussions with Maryland Department of the Environment, led by Lee Currey and your other colleagues on this topic. This letter follows those discussions. The undersigned members of the Choose Clean Water Coalition are pleased to present these detailed recommendations in pursuit of a successful process for Phase III WIP local engagement.

This letter, informed by significant outreach with advocates and local government representatives, is based on shared belief that in most cases local Phase II WIPs remain relevant and instructive. As such, we do not believe that the best value lies in asking local jurisdictions to “reinvent the wheel” by producing entirely new, separate Phase III WIP documents. Instead, we recommend that MDE, and its Cabinet member partners:

Develop numeric planning targets at the county level;

Assist local governments in undertaking an assessment that adapts their local Phase II WIPs to meet remaining challenges;

Maryland took significant steps to plan for pollution reduction in the Phase II WIP, but Maryland is currently projected to fall short of reaching its 2025 goals. Moreover, we understand that wastewater treatment plants are no longer expected to close the remaining gap. This increases the urgency of accelerating progress in the non-point source pollution sectors: stormwater runoff, septic systems, and agriculture. Maryland can build on the progress made in the Phase II WIP and make changes in the Phase III WIP process in order to close the gap of pollution reduction by 2025. The Phase III WIP program evaluation and planning process provides counties with an opportunity to revise their WIPs to ensure they reach their pollution reduction targets by 2025. For counties that did not fully participate in the

Phase II WIP process, the midpoint assessment presents a fresh opportunity to join local and regional efforts to reduce pollution and to develop a viable plan for doing so.

In order for Maryland to achieve its 2025 goals, the state must establish a clear understanding of who is accountable for which targets and pounds of pollution reduction. We recommend an involved and collaborative approach with local governments, notably counties, to reach identified local targets and identified measures to hold every level of government accountable and provide reasonable assurance that targets will be achieved. The following provides specific points of analysis and recommendations.

SECTION 1. CONTEXT FOR RECOMMENDED ACTIONSMaryland’s investment in the development of the Phase II WIP produced important results. WIP teams convened by state agency representatives and informed by key data enabled a diverse set of stakeholders to recommend WIP implementation measures that were relevant, applicable, and feasible at local and regional scales. County pollution reduction targets included during that process stimulated interest and creativity around proposed work and helped focus energy on discrete sets of programmatic and implementation actions. Although several recommended actions remain undelivered, they continue to have significant potential to underpin and motivate activity in the WIP’s third phase. There was also healthy diversity among participants, which should be maintained.

Recognizing the vital importance of local government investment in water quality improvement, NGO partners recently sought to better understand the value and results of various local accountability measures included in Phase II. In 2017, the Choose Clean Water Coalition held two round table meetings to review the performance of Phase II elements including county targets, milestone expectations, and progress reporting. Local government and NGO representatives in attendance heard updates relayed from MDE staff and discussed what the Phase III process should look like. Meeting participants laid out different options and assessed their pros and cons in making recommendations.

Through this process, we found that local governments were generally agreed that more direction from MDE would be helpful. While local governments are typically apprehensive to accept new regulatory proposals, many said that accountability played a key role in clarifying expectations, substantiating local investment, and generating interest from elected leaders. A number of local government representatives said that local targets are helpful and that continued support and direction from the state would be useful in Phase III.

SECTION 2. RECOMMENDED ACTIONS

SUMMARY

This letter will enumerate several recommendations for MDE to ensure the Phase III WIP process accomplishes the goal that EPA and Marylanders are counting on to close the gap between county level Phase II WIPs and our 2025 goals. Our engagement, dialogue, and experience partnering with local governments leads us to propose the following eight strategies as critical elements of a successful local engagement effort in the Phase III WIP planning process, and we encourage MDE to implement them:

I) County program assessment and Phase III gap strategy

Provide county governments with a template to complete a program assessment that identifies what has worked, what has not, and what is most needed to increase capacity for pollution reduction between now and 2025.

Based on this assessment, encourage county governments to update their local Phase II plans to provide a roadmap to reach 2025 goals.

II) County planning targets

Based on the state’s gap analysis and the local program assessment, collaboratively develop numeric county planning targets and clear lines of accountability and transparency for achieving them.

III) Enhanced milestone framework

Align state water quality funding sources to more fully support achievement of local milestones.

IV) Tools and technical assistance

Create ombudsmen positions and increase staff resources available to local governments to plan, prioritize, design, and secure funding for local milestone projects.

Refine optimization tools and develop a “lite” version of CAST to assist local scenario planning.

V) State implementation alternatives

Include in the Phase III WIP those regulatory, fiscal, or programmatic actions the state would need to take to make up for any implementation shortfalls associated with county planning targets.

VI) Alignment with permit requirements

Ensure consistency between restoration requirements in MS4 permits and county and statewide nutrient load reduction requirements in the Phase III WIP. See the Choose Clean Water Coalition letter sent to MDE on August 25, 2017 for more details.

VII) BMP Verification and Maintenance

Provide training to help counties participate in the state’s BMP verification protocols.

Establish an independent verification team to review BMP reporting and recommend improvements to tracking and maintenance protocols.

VIII) Accounting for Growth

In consultation with local governments, the development industry, environmental groups, and other stakeholders, adopt a robust Accounting for Growth policy that minimizes new or expanded pollutant discharges to the maximum feasible extent and fully offsets the remainder to ensure that it does not result in an overall net increase in pollution.

Process

Consider offering data resources and collaborative stakeholder opportunities like those undertaken by Pennsylvania and Virginia.

Target state resources to support partnerships and facilitate cross-sector discussion and implementation where appropriate.

Form a Local Working Group to advise MDE on local engagement in the Phase III WIP, including the program assessment, local gap strategies, resource needs, and the development of county planning targets.

DETAILED DISCUSSION

(I) COUNTY PROGRAM ASSESSMENT AND PHASE III GAP STRATEGYMany of the undersigned organizations find that the Phase II WIPs provide valuable information about local conditions, local capacity to reduce pollution, and expected levels of BMP implementation over the Phase II planning period. Many local plans also identified specific opportunities to increase the rate of progress. Our experience working with local governments since that time has demonstrated that the local Phase II WIPs remain relevant and instructive. The central challenge in most jurisdictions at this time is not planning, but instead creating the conditions necessary to accomplish these plans.

As such, we do not believe that the best value lies in asking local jurisdictions to “reinvent the wheel” by producing entirely new, separate Phase III WIP documents. Instead, we recommend that MDE request counties to undertake a program assessment that builds on their local Phase II WIPs as the first step in local Phase III WIP planning. This assessment should lead to the development of a strategy to close any projected capacity or implementation gaps identified for the 2018-2025 timeframe.

Specifically, the program assessment should identify what worked and what was not accomplished during the Phase II implementation period. The assessment should flag areas where the plan is off track, and evaluate prospective changes that can be made to programs, regulations, and budgets to accelerate progress related to programmatic capacity and BMP implementation. To have reasonable assurance that sufficient progress occurs going forward, MDE should encourage that the capacity enhancing measures included in the assessment are designed to achieve anticipated pollution reductions and clearly identify the resources needed for the enhancements to occur.

At the conclusion of this process, existing county WIPs should be updated to reflect the concrete strategies selected by the local jurisdiction to help close pollution reduction gaps identified in the Phase III WIP. MDE should provide a template for county governments to use in evaluating their programs and provide feedback to the Department. We recommend that the template include the following prompts and request feedback with any associated materials in writing:

The template should solicit descriptive information in objective and measurable terms wherever possible. Much of this evaluation could be facilitated and enhanced by integrating or cross-referencing other local planning documents, watershed restoration action strategies, and county budgets. For example, indicators of a county government’s capacity to implement projects could include an account of dedicated funding and staffing, program administration commitments, or local rules and regulations. Capacity can also be defined in terms of the factors that produce measurable progress toward milestone commitments or explicit support from county elected leadership. The gap strategy is an opportunity to highlight locally-dominant nutrient or sediment sources, as well as practices or procedures that have high potential to reduce pollution. To enable sufficient progress to be made going forward, planned actions must be specific about resource needs, increased budgets, and the methods intended to meet those needs.

While some sectors need substantial help, a focus on sector activity alone will not be sufficient. Maryland should encourage cost effectiveness to get the most pounds of pollution reduction for every dollar spent while also ensuring equity in responsibility and shared benefits. It is critical that MDE increase its local engagement around the Phase III process to ensure localities understand how important their role is in identifying opportunities to reduce costs and accelerate project delivery in pursuit of 2025 goals. As such, the local program assessment should also prompt conversations with other sectors participating in the Phase III WIP. Specifically, the template should prompt discussion and report on:

Coordination between county government and agricultural representatives to identify collaborative projects or cost-sharing/savings strategies;

Coordination between county government and municipalities to evaluate potential partnership on stormwater projects, sewer infrastructure, and other BMPs;

Expected capacity of local and regional non-governmental institutions and organizations to implement BMPs within the jurisdiction; and

A preferred structure for ongoing communication between sectors and stakeholders during WIP implementation.

Proposed schedule:We recommend that MDE provide local jurisdictions with guidance for conducting a program assessment by the middle of June 2018 and request responses by the middle of August 2018. This would provide MDE with valuable information to help finalize local area planning targets, as discussed below. Furthermore:

County targets (November 2018): MDE provides county targets as discussed below; and

County gap strategies (February 2019): counties finalize gap strategies based on local planning targets for inclusion in the draft Phase III WIP. This step should include a specific opportunity for public input prior to submitting the final strategy.

(II) NUMERIC COUNTY PLANNING TARGETSThe Phase III WIP should include numeric county planning targets that clearly define the pollution reduction responsibility attributed to each sector, including agriculture. County targets should be developed through a collaborative process and be provided jointly to the county governing body and the local Soil Conservation District to leverage the strengths of these institutions and maximize effectiveness and collaboration. Through the program assessment phase, counties provide key background information and local context that supports the development of planning targets and establishes critical interest in actions that result in targets being achieved.

We expect that county targets will not require that local jurisdictions close the entire remaining statewide gap on their own, but should, together with measures by the state and other permit holders and soil conservation districts, represent a fair-share effort towards achieving the total caps. This must be connected to, but go beyond, stormwater practices in MS4 counties.

Focusing the Chesapeake Bay partnership’s effort at a small scale was identified as one of the biggest capacity needs during the Phase II WIP. EPA’s interim expectations for the development of Phase III clarify that the Phase III WIP should include measurable planning goals below the major-basin scale.

Local area planning targets at the county scale are therefore critical to the success of Phase III and are necessary to demonstrate reasonable assurance that the Chesapeake Bay TMDL will be achieved. It is imperative that numeric pollution reduction goals match the scale of decision-making authority and existing structures for project delivery that reside with local governments. In Maryland, most stormwater facilities, septic systems, and small wastewater treatment plants are managed by county and municipal authorities. Implementation of agricultural BMPs is coordinated by local Soil Conservation Districts. While some cooperative regional structures exist, most are largely unequipped and in many cases lack experience to implement a comprehensive watershed restoration program.

Many local government partners report that concern with local targets in the Phase II WIP was rooted in the inability of the Chesapeake Bay Model to provide reliable estimates and projections at a detailed geography at that time. The current model contains greatly improved land use information that has been reviewed and endorsed by the Bay Program partners.

In addition, some counties felt that Maryland’s process for allocating loads advanced without proportionality between the responsibility to reduce loads and the available capacity and most cost-effective opportunities to do so. Since then, the Chesapeake Bay Program partnership has improved the capabilities of the Model and convened a Task Force that has recommended viable methods for arriving at local planning targets. In December of 2016, the Task Force informally called for local goals to be U.S. Environmental Protection Agency’s Interim Expectations for the Phase III Watershed Implementation Plans (Interim Version – January 19, 2017) established in partnership with local and regional partners, stakeholders, and federal and state facilities going forward, at a scale below the state-major river basin.

For Phase III, we recommend that MDE provide counties with numeric local area planning targets that represent attainable but accelerated goals for enhancing program capacity and implementation. The goals should be defined in terms of actions that provide MDE reasonable assurance pollution load allocations will be met overall. A county goal can facilitate an increase in coordinated action across sectors and across county lines, and prompt a focused effort on priority action while ensuring that reported progress is accounted for and validated to reach the total 2025 goal.

Under the current allocation framework, requiring local jurisdictions to close the entire remaining gap for non-point sources is expected to be very difficult. In general terms, Maryland’s Phase III WIP strategy should be the sum of reductions already achieved, reductions expected under current programs, and a combination of enhanced state and local strategies to close the remaining gap.

This means that, rather than setting an expectation that the county planning target requires local jurisdictions to close the entire remaining gap for non-point sources, county targets should instead represent a well-defined expectation for a substantial increase in local capacity to deliver BMPs. In other words, for sectors that are off track at the midpoint assessment, we would expect the local target to reflect an increase in the pace of implementation that is greater than current level of effort but less than the total sector burden. This, in combination with state stormwater and septic strategies, plus other sector allocations, should result in a plan to close the remaining gap.The magnitude and fitness of a goal at the local level could be based on:

The gap remaining after expected or proposed statewide strategies are applied;

Work by the Chesapeake Bay Program to identify the “reducible” load within a county;

Information that identifies the locally dominant nutrient or sediment sources;

Information on the cost and benefits of BMPs suited to a particular jurisdiction;

The program assessment that examines local progress, capacity, and feasibility of implementation actions; and

There are differences of opinion over exactly how sector boundaries should be defined and if and to what extent they should be used within the local planning target framework. Several rural jurisdiction representatives felt they had no control or exact data on the largest pollution sources in their county -- namely agriculture. We understand the potential for cost savings and faster implementation that comes with such flexibility; however, a single planning target that is everybody’s responsibility could quickly become nobody’s responsibility without shared accountability measures in place. If provided by sector, the magnitude of these targets could still be balanced among counties across the state to focus the majority of a specific county’s effort on the most pressing and potentially cost-effective solutions within that jurisdiction.3 Knowing and evaluating progress across sectors and better understanding who is responsible for each piece of a pollution reduction plan will be very useful. In no case should local targets reduce or rescind a load reduction required in an existing permit. Regardless, Maryland needs to ensure there are clear lines of accountability for who is ultimately responsible for pollution reduction.

(III) ENHANCED MILESTONE FRAMEWORKFeedback from local staff and elected officials at the roundtables last fall highlighted the value of local milestones in maintaining focus and effort towards pollution reduction goals. In short, county milestones for planning and implementation provide focus and coordination for restoration activity at the local level.

We believe that MDE should continue this accountability structure in Phase III and better coordinate the deployment of financial resources and technical assistance with achievement of local milestones. Doing so would increase the incentives that encourage localities to actively participate in the Phase III WIP process. Maryland should invest more funds in county resources, particularly to encourage and reward attaining milestones.

As a first step, we recommend that MDE and DNR increase the proportion of state funding that flows through the Local Milestone Implementation Grant program. We also recommend that these agencies adjust the scoring systems of the Bay Restoration Fund and the Trust Fund to support projects proposed by local jurisdictions that are actively pursuing local milestone commitments. Specifically, MDE should consider refining its Integrated Project Priority System in order to steer funding toward these jurisdictions and projects.

Moving forward, the state should allocate more funding to MDE and relevant agencies to properly administer this enhanced milestone framework. For example, Maryland’s capital budget for water programs has been reduced to well below the historic average in recent years. It would be counterproductive to continue these deficient levels of capital support given the tremendous need for restoring our water infrastructure systems and accelerating progress to meet our 2025 TMDL targets. Instead, we recommend that MDE propose to increase capital spending for pollution reduction programs administered by the Water Quality Financing Administration. Additionally, we hope DNR and the Bay Cabinet will consider engaging in discussions on how to set aside or increase similar incentive funds from the Chesapeake and Atlantic Coastal Bays 2010 Trust Fund to reward strong local performance. MDE will have to balance the use of incentives with the need to place investments where they can be done in the most cost-effective way.

(IV) TOOLS AND TECHNICAL ASSISTANCELocal jurisdictions will require additional resources in order to meet the goals as defined in this phase of the Bay TMDL. MDE can play a valuable role in supplying tools and technical assistance that better prepare localities to accomplish what the state asks of them.Based on our understanding of local needs, we suggest that MDE place a priority on refining tools for local scenario planning and optimization. Specifically, MDE could:

Develop a “lite” version of CAST and provide training to county staff and/or retain MDE staff or consultants to help run scenarios at county request

Another investment that MDE should consider is the placement of ombudsmen with local jurisdictions to assist those areas with planning and implementation of BMPs for the purpose of WIP implementation. Ombudsmen may assist with identifying, prioritizing, permitting, and securing funding for projects. This may also offer an alternate way to address when jurisdictions fail to reach acreage requirements in nonpoint source MS4 permits.

With a full cycle of MS4 permits to evaluate, it has become clear that adequate investment in the supporting tasks of project identification, prioritization and permitting is a key driver of progress. For example, Anne Arundel invested in stream assessments for the 10 years prior to the latest MS4 permit and as such, has a backlog and priority of projects. It has streamlined its permitting process and while not perfect, it is moving forward and making progress. In contrast, in some other urban jurisdictions there is no backlog because the projects that have been identified have not been prioritized and the permit process is still overly cumbersome.On the Eastern Shore, MDE is partnering with an NGO and local jurisdictions to leverage funds from EPA that are enabling investment in a technical service provider that is shared by multiple localities. The pilot project will help unregulated and Phase II MS4 jurisdictions in this region maximize limited resources with a goal of planning, prioritizing, and streamlining delivery of projects for WIP credit. Models similar to this could be replicated in other rural regions of Maryland where under-resourced localities that are not subject to a stormwater permit face significant capacity constraints. The location of an ombudsman position like the one being piloted on the Shore could be determined in part by the degree to which presiding jurisdictions are investing in closing the gap to meet their 2025 goals.

Maryland is fortunate to have several technical service delivery structures already in place that could be refined or enhanced to support a statewide local ombudsmen program. MDE could reinvest in staff resources directly to support this work. The Watershed Assistance Collaborative and the University of Maryland Sea Grant Extension supply restoration specialists to support local projects and priorities. MDA’s Soil Conservation Districts and Resource Conservation and Development offices both contain seasoned and skilled stormwater management practitioners. Regional Councils offer key services to multiple counties with similar needs. These entities, with modest additional investment or reprioritization, could be leveraged to increase staff capacity to support WIP obligations.

Staffing vacancies at MDE should also be filled and assigned to support local jurisdictions with their water quality improvement efforts. Funding for technical assistance could come from a variety of sources. State agencies could apply as-yet unused legislative appropriations for staffing. The Trust Fund could provide measured outlays for technical assistance. An ombudsmen program may also be funded by leveraging resources from multiple partners who share in the cost of the program’s delivery. The Eastern Shore pilot offers an attractive model where partnering local jurisdictions, MDE, and EPA through the National Fish and Wildlife Foundation share in the cost of the ombudsman position that serves six localities. Other funding partners could include the Rural Maryland Prosperity Investment Fund, which has been receiving a growing allocation from the Maryland General Assembly and could be tapped to further diversify and minimize financial commitments from any single entity.

The ombudsman and other forms of technical assistance should help not only accelerate progress towards nutrient reduction and optimization of cost effective measures, but also ensure projects and BMPs create multiple benefits through Green Infrastructure (GI) and other innovative strategies. State and local Phase III WIP planning should project how proposed project will reduce other pollutants of local and regional concern, and preference should be given to strategies that address multiple pollutants. In many cases, projects and activities can be chosen to reduce nitrogen, phosphorous and sediment while also removing other pollutants. For example, EPA studies on Green Infrastructure bioretention systems show that they can also effectively remove significant heavy metals.4 Green Infrastructure projects tend to remove or treat other pollutants and provide multiple benefits while helping to meet nitrogen, phosphorous and sediment goals. Riparian buffers, for example, can also provide several benefits. While the three main pollutants should remain the main focus of the Phase III WIPs, MDE should explore ways to encourage other non-nutrient TMDLs into the Phase III WIPs. We also approve of MDE’s incorporation of salt and deicing in the new MS4 draft templates.

(V) IMPLEMENTATION ALTERNATIVESOur organizations believe that the Phase III WIP will best be positioned for success when state and local reduction commitments, policies, and investments are coordinated and working together. However, we are cognizant that a variety of factors could result in counties, soil conservation districts, and permitted entities falling behind local pollution reduction targets. In this regard, it is imperative that MDE outline in the Phase III WIP the specific actions that it will need to take to maintain a suitable 2025 trajectory if regulatory or programmatic changes are not made as expected in local permits and Phase III WIP gap strategies. This “second pathway” or “contingency plan” to achieving the 2025 goals could help Maryland’s Phase III WIP meet the reasonable assurance standard in the Clean Water Act and clarify expectations and alternatives for all stakeholders. This contingency plan should be included as a section in the Phase III WIP.

For permitted entities, corrective actions should accelerate pollution reduction work that is in non-compliance or behind schedule to maintain the pollution reduction timetables outlined in the WIP. Corrective actions in noncompliant jurisdictions may include increasing pollution reduction activity or responsibility, hiring of additional staff or ombudsman to perform technical assistance and add capacity, or withholding of other funding. Any deadline extensions should not push back work anticipated by the WIP under a future permit; instead, these responsibilities must be cumulative and be satisfied concurrently. MDE should also promote public transparency in their compliance programs, in line with the practices of many neighboring states.

For unregulated sectors and jurisdictions, MDE should outline those state policies that would be needed to fill any gaps in achievement of local targets. For example, the state may find it necessary to require Best Available Technology on new or replacement septic systems beyond the Critical Area in jurisdictions that are unable to make progress in that sector through other means. Or as a fiscal example, the state may need to reallocate local distributions of the Bay Restoration Fund to tackle the most significant local sources of pollution.

For both regulated and non-regulated entities, MDE and MDA should consider use of a third party to assess the activity in a jurisdiction that is determined to be off track with pollution reduction targets. This third party could provide independent recommendations for increasing capacity or efficiency that could help improve the rate at which projects are implemented during the permit lifecycle or other relevant schedule. The third party could be sourced from EPA, the Chesapeake Bay Program, or an authorized technical service provider.

(VI) ALIGNMENT WITH MS4 PERMIT REQUIREMENTSImprovements in water quality are directly tied to the amount of pollution from upland sources that surface waters receive. In the wastewater sector, EPA and MDE regulate point source dischargers based on levels of nitrogen and phosphorus leaving the permitted facility. This regulatory structure has proven effective at ensuring damaging pollutants are adequately controlled. Permitted dischargers of stormwater should similarly be required to treat polluted runoff on a direct water quality basis rather than solely on a water quantity basis.The MS4 permit program must continue providing a strong regulatory framework for all jurisdictions to meet Clean Water Act requirements. Recent conversations with MDE have suggested that the agency may make multiple changes to the program that, in our view, would represent backsliding compared to current requirements, including expectations outlined in the Phase II WIP. Ongoing enforcement and technical assistance from MDE are both necessary to ensure MS4 jurisdictions continue working to address their stormwater challenges. Lack of funding, permitting timelines, budgetary cuts, or waiting for nutrient trading markets are not acceptable excuses for missing MS4 permit deadlines.

Phase III WIP restoration methodology and metrics should directly connect MS4 permits to the amount of pollution a water body can safely assimilate based on the applicable TMDL. For the next generation of Phase I MS4 permits, Waste Load Allocation (WLA) reduction requirements should be combined with durable Green Infrastructure restoration requirements to meet the Chesapeake Bay TMDL, local TMDLs, and stormwater volumetric reductions. The inclusion of a requirement to meet WLAs with a minimum GI requirement will support both water quality improvements and runoff reduction for local waterways and the Chesapeake Bay.

Establishing the WLA as the ultimate reduction target sets a clear and transparent standard for pollution reduction. By establishing GI targets in permits, regulated dischargers would be compelled to implement the most efficient and cost-effective pollution control technology available, providing confidence that projects on the ground will achieve water quality targets. Under this methodology, the GI requirement in a permit would not be a percentage of the county’s impervious surfaces (e.g. 20%) expressed in acreage but rather a percentage of the WLA (e.g. 40%) expressed in pollutant pounds that come from projects and practices with efficiencies approved for credit by the Chesapeake Bay Program. A GI standard tied to water quality in permits would enable MDE to demonstrate greater assurance to EPA that stormwater pollution reduction targets are being met. Moreover, while green infrastructure and many stormwater BMPs are often deemed as not “cost-effective” they are, in fact, economically efficient options given the plethora of health, environmental, climate, and economic benefits. MDE should help local governments use the Bay Program’s new “optimization engine” and tools as a way to prioritize such multi-benefit BMPs. Additional details on our recommendations for MS4 permits are included in the Choose Clean Water Coalition letter sent to MDE on August 25, 2017.

(VII) BMP VERIFICATION AND MAINTENANCEThe importance of strengthening verification protocols in Maryland at this point in time cannot be overstated. In order to meet Bay TMDL goals, MDE and local jurisdictions need to accelerate the pace of projects, as well as provide proper verification that leads to well-maintained BMPs throughout their life cycle. As stated by the Validation Panel of the Chesapeake Bay Program, assuring transparent and accurate BMP meets definition verification was, and remains, critical to achieving true long-term improvements in water quality and establishing public trust.Verification and validation are of utmost importance. Especially since non-validated BMPs and programs will no longer get any credit under the new Bay model, outreach to localities to ensure they have proper monitoring, evaluation, maintenance and compliance assurance procedures in place is paramount. Otherwise, localities may be surprised and discouraged by progress that is less than expected towards the 2025 cleanup goals.According to surveys of six counties in 2015, only 42% of BMPs were in good condition. Another 25% are failing in ways that negate most aquatic resource protection benefits and the remaining 33% are in need of maintenance.5 When BMPs are not maintained properly, they are not effectively performing the pollution reduction that was designed and counted. Maintaining existing BMPs is one of the most cost effective methods of maximizing the results of local efforts to reduce pollution. Supporting agencies in improving compliance is usually the quickest, least costly, way of dramatically improving water quality.Maryland would benefit from an independent verification team and more funding to execute the protocols. To improve practices, verification needs to be carried out in conjunction with on-the-ground assessment and technical assistance as much as possible, especially in non-regulated sectors such as agriculture, stormwater facilities in rural jurisdictions and forestry.MDE and other agencies in Maryland need greater capacity to ensure the verification plan is fully executed. We commend MDA for proposing to establish a BMP Verification task force, but we have not received further information on the establishment of the group or its work. If this proposal has been carried forth, the state should consider expanding the task force to supplement verification activities across BMP sectors, not just agriculture. Additional funds should be allocated to MDE, DNR and MDA in order to spearhead this verification task force.

(VIII) ACCOUNTING FOR GROWTHThe Phase III WIP process must incorporate the means to account for any increases in pollution loads created by growth in the urban stormwater, wastewater, and agricultural sectors. For example, Maryland is losing nearly 2,000 acres of forest land per year to development. According to Chesapeake Bay Program loading rates, this conversion can result in a four-fold or more increase in pollution on a per-acre basis.EPA is placing a priority on growth offsets in the Phase III WIP. In its January 2017 Interim Expectations, EPA states:Gaps in programmatic capacity the jurisdictions will need to address in the 2018-2025 timeframe through their Phase III WIPs include...Building the programmatic infrastructure, tracking systems, policies, legislation, and regulations necessary for fully accounting for growth, and offsetting all resultant new or increased pollutant loads through 2025. (p 2)MDE should make certain that counties have the information needed to plan in ways that do not jeopardize or counteract the pollution reduction progress they are making. The Phase III WIP must include a viable policy that quantifies the amount of new pollution created from growth and ensure that these loads are fully offset. Specifically, the policy must ensure that any activity within its jurisdiction that will produce a new or expanded discharge of nitrogen, phosphorus, or sediment will be reduced or met by offsets. The discharger of the increased pollutant must be required to mitigate the increase at the source or secure one or more legally enforceable offsets before that activity may commence. This is required under the Clean Water Act and EPA’s implementing regulations.SECTION 3. COLLABORATION DURING PHASE III WIP DEVELOPMENTThere is no need to start from scratch in the Phase III WIP. But this does not mean MDE should refrain from actively engaging and supporting local government action between now and 2025. The momentum and water quality improvements accomplished through local participation in Phase II need continued structure, support, and accountability. We urge MDE and the full Bay Cabinet to move forward rather than step back from its leadership role in fostering a coordinated state and local response to the water quality challenges facing the Bay and local waters.MDE should prioritize stakeholder support in the process and give direction to all of the parties that will be executing WIP plans. There has been significant turnover of staff and leadership in some local jurisdictions. This often means that, even in jurisdictions with a strong Phase II WIP, local elected officials and staff would benefit from outside knowledge and expertise to properly structure and execute a gap strategy as part of the phase III WIP. Our experience is that many local governments welcome more guidance and education. Pennsylvania has had informational and financing workgroups meet on a biweekly basis since the fall. Pennsylvania also has created a toolbox that includes GIS modeling and monitoring data. Maryland might explore using these workgroups and tools as a model.14Virginia is also engaging Planning Districts and Soil Conservation Districts in regional engagement and collaboration.PartnershipsThe Phase III WIP is a prime opportunity to focus support on partnerships that can get more done faster and for less money. While capacity assessments and pollution reduction goals can prepare local government partners to increase the performance of actions taken in Phase III, non-government organization (NGO) and public and private technical service providers can provide additional capacity to close remaining pollution reduction gaps.The undersigned organizations and our partners work diligently with local governments to provide value in accelerating the progress of pollution reduction as well as educating elected officials, policymakers, and the public in localities. There is great interest in engaging nonprofit organizations to help educate the public and policymakers about the importance of pollution reduction policies. In addition, many Foundations are actively providing financial support for local government outreach, financing options, and other implementation tools. Because much of the low hanging fruit has been picked, nonprofits and businesses can be helpful in continuing to accelerate the progress of projects. However, to be more effective, we recommend that the state target more funding and resources to encourage these public-private partnerships.

There are also several opportunities for collaboration between agriculture and urban/wastewater sectors. More exchange of information such as progress reports and collaboration between Soil Conservation Districts and local government could produce cost-effective opportunities for pollution reduction. This is especially the case in non-regulated or newly-regulated jurisdictions. A diversity of agencies and sectors can also bring different elements to the table that make partnerships powerful synergistic forces. For example, SCDs bring experience and expertise in the design and delivery of projects. Local governments have an administrative structure, public land, and a method for engaging private property owners in placing BMPs on their land. Discussions facilitated by the program assessment and ombudsman role outlined earlier in this letter could aid in facilitating these local partnerships.

Local Working GroupMDE should initiate regular meetings with local governments and other stakeholders to communicate expectations and solicit feedback associated with the Phase III WIP as soon as possible. Local elected officials in particular need ongoing education on this process. In addition to outreach, we recommend creating a standing working group for local engagement in Phase III WIPs. The working group would advise on matters related to local engagement and provide an open forum in which to develop county planning targets. This body could also inform other outstanding issues related to the Phase III WIP, such as sector allocations. At a minimum, workgroup membership should include representatives from: Urban and rural, county and municipal stakeholders, including elected leaders and staff Soil Conservation Districts Bay Cabinet agencies Agricultural sector Private-sector water quality restoration professionals and businesses Chesapeake Bay Commission The NGO community

SECTION 4. CONCLUSIONThe final push to 2025 has begun and Maryland must apply every effort to accelerate progress toward that goal line. In order to reach it, MDE will have to do more to assist localities, magnify engagement, create incentives for exceptional performance, provide more resources, and maintain effective transparency and accountability—including enforcing corrective actions when needed. The recommendations above are intended to provide a framework for local engagement that can be leveraged to address other issues that EPA and Bay Program partners expect to tackle in the Phase III WIP. For example, we understand that MDE plans to take climate change into account as the letter sent last year from the Choose Clean Water Coalition recommends. We urge MDE to help engage localities to ensure they know how climate change will affect them and how it should be incorporated into their planning and Phase III WIPs.In closing, we view the challenges ahead as MDE’s best opportunity to reaffirm and invest in a holistic and comprehensive water quality restoration approach that ensures more nonpoint source pollution projects go into the ground faster and remain well maintained. Reaching the Chesapeake Bay TMDL 2025 goals will require a Phase III WIP process that allows all partners to share clear expectations and accountability for progress along with the tools and support needed to get the job done.If you have any questions, please contact Ben Alexandro, Maryland League of Conservation Voters, at balexandro@mdlcv.org and Erik Fisher, Chesapeake Bay Foundation, at EFisher@cbf.org.

The undersigned members of the Choose Clean Water Coalition want to express their thoughts on two key issues that will be discussed at the Principals’ Staff Committee (PSC) meeting in March. First, is the decision regarding inclusion of the model results of climate change in the Phase III Watershed Implementation Plans (WIPs). Second, is the approach being used to help satisfy West Virginia and New York’s “special case” allocations.

Inclusion of Climate Change in Phase III WIPs

Members of the Coalition are deeply concerned and disappointed to learn that the PSC was unable to come to a consensus on whether to communicate the Bay modeling estimates of the effects of climate change in the Phase III WIPs. This decision is short-sighted. Inclusion of the model estimates would be an important public acknowledgement of the challenges ahead, could inform near-term strategies for qualitatively addressing climate change impacts in the Phase III WIPs, and would set the stage for future actions.

In addition, in the absence of a definitive commitment to address pollution loads attributable to climate change, it is imperative that the Bay Program partners commit the resources necessary to refine the climate modeling and assessment framework that is needed to support final decision-making in 2022 on how to address climate-attributable pollution loads. In the near term, the Bay Program partners must also commit the resources necessary to investigate the climate resilience and climate co-benefits of restoration practices and to use this information when developing their Phase III WIPs.

Closing the Gap on the “Special Cases”

We also want to express our concern about the approach currently being considered to help close the gap for the “special case” allocations for New York (NY) and West Virginia (WV). Our issue is not with the additional allocations, per se, as we believe that NY and WV are justified in their request that the agreement reached in 2009, regarding additional allocations, be honored. Our concern stems from: (1) the reliance on additional NOx reductions that are expected to occur by 2030; and (2) the absence of any consideration that increases in ammonia emissions since 2009 should be offset.

Reliance on Projected NOx Reductions from State and Federal CAA Regulatory Programs

According to the February 12, 2018 presentation to the Water Quality Goal Implementation Team1 an additional 1.6 million pounds of nitrogen reductions, almost entirely from NOx reductions, is projected to be available by 2030. These modeled reductions are based on expected benefits from the implementation of state and federal Clean Air Act (CAA) regulatory programs.

These expected reductions are far from certain. The Environmental Protection Agency (EPA) has recently proposed to repeal several national regulations, some of which are being relied upon for these reductions. According to the October 31, 2017 webinar hosted by the Chesapeake Bay Program,2 the future air modeling includes the benefits of the “CAFE Rule” and implementation of the 2015 ozone standard of 70 ppb, among others. Since there was no specific definition given for the “CAFE Rule”, we are interpreting it to apply to regulations that improve automobile fuel economy standards and reduce greenhouse gases.

On August 17, 2017 EPA announced their Reconsideration of Final Determination on the Appropriateness of the Model Year 2022-2025 (and 2021) Light Duty Vehicle Greenhouse Gas Emissions Standards under the Midterm Evaluation.3 EPA is reconsidering whether the lightduty vehicle greenhouse gas (GHG) standards previously established for Model Year 20222025 are appropriate under Section 202 (a) of the Clean Air Act (CAA) and whether the lightduty GHG standards established for Model Year 2021 remain appropriate. In addition, on November 16, 2017, EPA proposed to repeal the emission requirements for glider vehicles, glider engines, and glider kits from GHG standards for heavy-duty trucks.4 Glider vehicles are new truck bodies that contain older engines. The proposed rule would remove the requirement for these engines to meet emission standards applicable in the year of assembly of the new glider vehicle.

Failure to implement the Light Duty Vehicle GHG standards and to regulate the glider industry under EPA’s Phase 2 rule could result in the failure to achieve millions of pounds of NOx reductions nationwide and will affect modeled nitrogen reductions in the Chesapeake Watershed.

The EPA has also indicated interest in revisions to the New Source Review rule for power plants.5 This rule has been a major driver in the significant NOx reductions in the past ten years and changes to the rule could mean expected reductions will not occur. Finally, the implementation of the 2015 ozone standard is also in jeopardy, as EPA missed deadlines for promulgating the initial area of designations related to NAAQS for ozone and final agency action by EPA remains unclear.6

These actions, taken together, indicate that the reliance on projected NOx reductions from state and federal CAA regulatory programs is, at best, now in question. It is worth noting that these actions will also result in more emissions of greenhouse gases that contribute to climate change, further exacerbating our Bay restoration challenges.

One reason for the shortfall in expected nitrogen reductions from atmospheric deposition projected during the development of the Chesapeake Bay Total Maximum Daily Load is increases in ammonia emissions and deposition (see figure below taken from slide 39 in the October 31, 2017 air webinar). These increases are due, in part, to increases in ammonia emissions from agriculture (see slide 58). To that end, we note there have been substantial increases in poultry production in several states in the Chesapeake Watershed since 2010 (see table below) and poultry production is a known source of ammonia. Any additional nitrogen loads that resulted from these increases in poultry production should be offset by the states where the increases occurred, in accordance with Appendix S of the Bay TMDL and EPA expectations regarding state procedures to account for new and expanded sources of pollution loads. These additional reductions could be used to help close the gap on the special cases for NY and WV.

Additional nitrogen loads associated with ammonia from animal operations that occur between 2009 and 2025 could be modeled using a similar approach as that used to estimate NOx benefits. The states responsible for these additional loads would receive a smaller allocation to offset these new loads.

We sincerely thank you and the rest of the Principals’ Staff Committee for your leadership on Bay restoration and thoughtful consideration of our input. In addition, we welcome the opportunity to work with you and the other Chesapeake Bay Program partners in the coming months on the development of quality Phase III WIPs. Please contact Chante Coleman at 443927-8047 or colemanc@nwf.org with any questions or concerns.

The undersigned members of the Choose Clean Water Coalition and the Coalition for the Delaware River Watershed urge you to cosponsor the Environmental Justice Act of 2017 (S. 1996/H.R. 4114). Together, our coalitions represent more than 350 organizations across the Chesapeake Bay watershed and the Delaware River watershed, which cover more than 77,000 square miles and are home to over 25 million residents across 7 states and the District of Columbia.

This bill is essential to ensuring that the most burdened communities throughout the United States receive equitable access to clean air and clean water. For decades, our nation’s communities of color, indigenous, and low-income communities have experienced disproportionate negative environmental and human health impacts. Those living in marginalized communities continue to bear the burden of infrastructure, industrial, and commercial development, yet see few of the benefits. By living in proximity to hazardous sites, these communities face higher risk for exposure to toxic chemicals and associated health impacts like asthma and lead poisoning. The 1994 Executive Order on Environmental Justice (EO 12898) helped to focus federal attention on addressing these inequities, though many gaps remain to better protect all Americans.

The Environmental Justice Act of 2017 would expand and codify EO 12989 including: strengthening coordination among federal agencies to eliminate adversities that promote environmental injustice; improving public access to information and participation in the federal decision making process; and codifying the Council on Environmental Quality’s guidance assisting federal agencies with their National Environmental Policy Act procedures that address environmental justice concerns. This bill would also require the consideration of cumulative impacts for permitting decisions under the Clean Water Act and the Clean Air Act, which would help improve the quality of life for communities in urban and rural areas within close proximity to superfund sites or areas with concentrations of polluting facilities. This bill would additionally strengthen legal protections against environmental injustice. Communities throughout our watersheds, such as Baltimore, Camden, and Philadelphia could bring statutory claims for damages under common law and request injunctive relief for environmentally caused health crisis events that have severe impacts on children and future generations. Furthermore, this bill would restore the right for individuals to bring actions under the Civil Rights Act against entities engaging in discriminatory practices.

The improvements would benefit millions of residents in the Chesapeake Bay and Delaware River watersheds by ensuring that all are protected from harmful and unnecessary exposure to pollutants in the environment. Thank you for reviewing this important request and please consider cosponsoring the Environmental Justice Act of 2017.

The undersigned members of the Choose Clean Water Coalition request continued support for programs that are essential to maintaining a healthy and vibrant Chesapeake Bay and a strong regional economy that is dependent on the Bay’s resources. The National Oceanic and Atmospheric Administration (NOAA) has a strong and long term presence in the Chesapeake Bay area, and its Chesapeake Bay Office coordinates their efforts with other federal agencies, state and local partners and users of the resource.

The programs that are run and/or coordinated by NOAA’s Chesapeake Bay Office (NCBO) are critical for the Chesapeake Bay ecosystem and for its users and residents. These programs provide the science and management assistance necessary for those whose livelihood is to ply the Bay’s waters for fish, crabs and oysters and to the hundreds of thousands of people who fish recreationally in the Bay every year and to the millions who boat, kayak, and/or view wildlife in the region.

NCBO is also critical for others, from students learning about science with hands-on experiences to local governments and residents along the shore to have the latest information to prepare for coastal flooding and hurricane emergencies.

Utilizing sound science in the management of Chesapeake Bay resources is critical for our regional economy. We request the following funding levels in Fiscal Year 2019: Department of Commerce

The NCBO was established by Congress in 1992 to provide resources, technical assistance and coordination through its two branches: the Ecosystem Science and Synthesis Program, which focuses on applied research and monitoring in fisheries and aquatic habitats; synthesis, and analysis to describe and predict Bay ecosystem processes; and technical assistance to Chesapeake Bay decision makers.

The second branch is Environmental Literacy and Partnerships Program, which focuses on the development of K-12 and higher education environmental science education programs; strategic partnerships with the Chesapeake Bay Program and other government, university, and nonprofit partners; and delivering NOAA products, services, and programs to targeted audiences.

The Office’s programs play a key role in implementing the voluntary Chesapeake Bay Agreement among the states and is critical to ensuring that commitments are met to: • restore native oyster habitat and populations in 10 tributaries by the year 2025; • ensure students graduate with the knowledge and skills to protect and restore their local watershed; • sustain a healthy blue crab and striped bass (rockfish) population; and • maintain a coordinated watershed-wide monitoring and research program. The specific breakdown of our request for $9.25 million for the NCBO is as follows: • Oyster Restoration - $4 million The Chesapeake Bay oyster population is less than 1 percent of historic levels and the ecosystem functions associated with oyster reefs, including fish habitat and nitrogen removal, are similarly diminished. NCBO has built on past success to restore entire tributaries, with self-sustaining oyster populations and to measure the resulting ecosystem benefits. NCBO works with federal, state and private partners to plan and implement this tributary-scale restoration in both Maryland and Virginia. Funding for oyster restoration in the Chesapeake was also done through the U.S. Army Corps of Engineers, but they have not received funding in a number of years. Funding for this key program has eroded sharply since FY2010, and without Army Corps funds, NOAA is the only Federal agency left to continue this key restoration program.

• Environmental Education and Literacy - $3.5 million NCBO encourages and supports efforts in K-12 and higher education to develop and implement comprehensive environmental literacy programs. NCBO runs the nationally recognized Bay Watershed Education and Training Program (B-WET) - a competitive grant program for hands-on watershed education for students and teacher training to foster stewardship of the Chesapeake Bay. B-WETs funding has steadily eroded since 2010 and should be restored to at least that level.

• Fisheries Science and Management - $1 million Recreational and commercial fisheries are among the most valuable economic activities for the coastal communities of the Bay. Fishing pressure, habitat loss, invasive species, degraded water quality, and toxics affect these important fisheries, including striped bass (rockfish), blue crabs, oysters, menhaden and cow-nosed rays. NOAA supports well-managed Chesapeake Bay fisheries and the habitats they depend on by delivering timely ecosystem-based science and forecasts to science and management partners. Historically, the states have looked to NCBO to conduct stock assessments, particularly for blue crabs. Each state

often has its own assessment data, but NOAA’s ability to look at the stocks for the entire Bay is critical. Each stock assessment costs approximately $500,000.

• Chesapeake Bay Interpretive Buoy System (CBIBS) - $750,000 The Chesapeake Bay ecosystem is dynamic, and water quality is driven by variable local and regional forces. High quality data is needed to monitor, understand, forecast, and provide information for science-based decisions and needs to be continuously measured and summarized. NCBO maintains the CBIBS, a network of 10 buoys that collects and relays near-real-time data to users. This supports public access to the Bay and boater safety on the water through the Captain John Smith Chesapeake National Historic Trail, administered by the National Park Service. Thank you for your consideration of these very important requests to maintain funding for programs that are critical to the health of the Chesapeake Bay and its natural resources. Please contact Peter J. Marx at 410-905-2515 or Peter@ChooseCleanWater.org with any questions or concerns.

The undersigned members of the Choose Clean Water Coalition request continued support for programs that are essential to maintaining and restoring clean water to the rivers and streams throughout the Chesapeake Bay region and to the Bay itself. Two-thirds of the 18 million people in this region get the water they drink directly from the rivers and streams that flow through the cities, towns and farms throughout our six state, 64,000 square mile watershed. Protecting and restoring clean water is essential for human health and for a robust regional economy.

The efforts to clean the Chesapeake began under President Reagan in 1983. In his 1984 State of the Union speech President Reagan said, “Preservation of our environment is not a liberal or conservative challenge, it's common sense.”

To follow a common sense path to maintain healthy local water and restore Chesapeake Bay, which is critical for our regional economy, we request funding for the following programs in Fiscal Year 2019: U.S. Environmental Protection Agency

Chesapeake Bay Program -- $73.0 million

We support level funding of $73.0 million for the base budget of the Chesapeake Bay Program, which coordinates Chesapeake Bay watershed restoration and protection efforts. At least twothirds of the program’s funds are passed through to the states and local communities for on-theground restoration work through the Small Watershed Grants, Innovative Nutrient and Sediment Reduction Grants, State Implementation Grants, and the Chesapeake Bay Regulatory and Accountability Program grants. We strongly support the highly successful and popular Chesapeake Small Watershed Grants and the Innovative Nutrient and Sediment Reduction Grants – $6 million each – that Congress appropriated for the past few years. These are two well

run, competitive grant programs that have contributed significantly to water quality improvements throughout the Chesapeake Bay watershed. These are the Bay Program’s only grants that go directly to on-the-ground restoration efforts by local governments and communities, including to family farms. Without specific Congressional direction, EPA has, in the past, reallocated this grant money for purposes other than local restoration. This is not the time to stop local implementation of restoration work. We strongly support the funding levels that Congress has appropriated each year since FY2015, and we urge you to include language similar to the Senate’s Explanatory Statement for the Department of the Interior, Environment, and Related Agencies Appropriations Bill, 2018, which states, “Chesapeake Bay - The Committee recommends $73,000,000 for the Chesapeake Bay program. From within the amount provided, $6,000,000 is for nutrient and sediment removal grants and $6,000,000 is for small watershed grants to control polluted runoff from urban, suburban and agricultural lands.”

We urge you to retain similar language in the FY 2019 Interior, Environment and Related Agencies Appropriations Bill, for both the overall Chesapeake Bay Program and for the local grant programs.

Clean Water State Revolving Fund (SRF) --$2.8 billion

This program is critical to any national initiative to provide a Federal Infrastructure Spending Plan and it provides the lifeblood for the 1,779 local governments throughout the Chesapeake region to secure their water infrastructure. The funding level for this Clean Water SRF has eroded over the years as the clean water needs of local communities have increased dramatically. The Choose Clean Water Coalition supports efforts in both the House and the Senate, and within the Administration, to enhance investments in key water infrastructure projects nationwide, and the Clean Water SRF is the single best mechanism to accomplish that goal. We support doubling the current funding for the Clean Water SRF – and that is what we are requesting. This will help to close the gap between federal infrastructure investment in clean water and the known need. This will also dramatically improve water quality and protect human health in our region and across the nation.

These low interest loans are critical for clean water and for ratepayers in the Chesapeake region and nationwide. We urge you to support the $2.8 billion funding level that would provide $590 million in low interest loans to local governments in Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia and the District of Columbia – twice the current level of funding. We also strongly support targeting 20 percent of the Clean Water SRF funds for green infrastructure and innovative projects including those to manage stormwater, which helps communities improve water quality while creating green space, mitigating flooding, and enhancing air quality.

The Clean Water SRF allocates money to the states based on a set formula, which is then used for low interest loans to local governments for critical capital construction improvement projects to reduce nutrient and sediment pollution from wastewater treatment and stormwater facilities; nonpoint sources of pollution, such as farms and development; and other sources. In addition to

the use of these funds on farms and for nonpoint source pollution, it provides assistance for other pollution reduction and prevention activities in rural areas, such as reforestation and forest protection and stream stabilization and restoration. The Clean Water SRF enables local governments in the Chesapeake watershed to take actions to keep their rivers and streams clean. As the list of clean water infrastructure needs in the Chesapeake region continues to expand, we request that Congress double the funding of the Clean Water SRF from the current funding level. Department of the Interior

We support full funding for the USGS to continue to provide the critical science necessary for restoration and protection efforts for fish, wildlife and the 18 million people in the Chesapeake Bay watershed. USGS monitoring and assessment informs decisions made by the Department of the Interior as well as other federal and state partners on issues related to fisheries and associated water quality, waterfowl and their habitats and land protection. In FY 2019, USGS is putting a new focus on habitat conditions supporting important recreational fisheries. Habitat conditions from headwater streams to tidal estuaries will be assessed to help focus, and evaluate, restoration and protection efforts. The efforts will include summarizing the factors affecting fish health in the watershed and opportunities to reduce effects from nutrients, sediment, and toxic contaminants. The findings will also inform the development by the states of their Phase III Watershed Implementation Plans. USGS provides the expertise to restore and conserve coastal wetlands that are critical habitat for the more than one million waterfowl that winter in the Chesapeake region. In 2019 studies of black duck habitats will be used by the U.S. Fish and Wildlife Service to adapt practices on national wildlife refuges, and USGS will begin to address shallow water habitats important for additional recreational species. The USGS will be supplying land-change forecasts to inform land protection. The National Park Service and the Chesapeake Conservation Partnership have requested the USGS to provide forecasts of where development may impact healthy watersheds and vital lands across the watershed. Finally, the USGS is leading an effort to map areas where restoration and conservation efforts will contribute to multiple Chesapeake goals - benefiting people in the watershed as well as fish and wildlife. This mapping is being used by state and federal partners to more effectively focus actions and share available resources. National Park Service -- Chesapeake Regional Programs -- $2.897 million

The National Park Service Chesapeake Bay Office runs a number of small, but very important programs that focus on increasing public access and the use of ecological, cultural and historic resources of the Chesapeake region. Expanding access and public awareness fosters stewardship and protection efforts.

We are requesting level funding for these key programs administered by the National Park Service in the Chesapeake Bay watershed: Captain John Smith Chesapeake National Historic Trail ($389,000); Chesapeake Bay Gateways and Trails ($2.02 million); and support for coordinating these programs through the National Park Service Chesapeake Bay Office ($488,000). In addition, as in the Consolidated Appropriations Act of 2016, we urge you to extend the authorization for the Chesapeake Bay Gateways and Trails program for two more years. Department of the Interior/U.S. Department of Agriculture

National Park Service/U.S. Fish and Wildlife Service /U.S. Forest Service - Land and Water Conservation Fund Priority Projects in the Chesapeake Bay Watershed - $12.752 million

We strongly support full funding for the Land and Water Conservation Fund. In particular, we support continuation of the strategic use of funds from the Land and Water Conservation Fund for priority projects in the Chesapeake Bay watershed. These efforts target conservation funds for critical priority landscapes throughout the Chesapeake Bay region. The following projects would protect nearly 6,000 acres nationally significant resources, such as migratory bird habitat, spawning areas for economically important fish and shellfish, significant forest resources and projects to enhance public access.

• U.S Fish and Wildlife Service- James River National Wildlife Refuge (VA) – $1 million • U.S Fish and Wildlife Service – Rappahannock River Valley National Wildlife Refuge (VA) - $2 million • U.S. Forest Service – George Washington and Jefferson National Forests (VA) - $452,000 • U.S. Forest Service – George Washington and Jefferson National Forests (VA) - $2,300,000 • National Park Service – Captain John Smith Chesapeake National Historic Trail (VA) - $4,000,000 • National Park Service –Richmond National Battlefield Park (VA) - $3,000,000 Thank you for your consideration of these very important requests to maintain funding for these programs which are critical to clean water throughout the mid-Atlantic region. Please contact Peter J. Marx at 410-905-2515 or peter@choosecleanwater.org with any questions or concerns.

The undersigned members of the Choose Clean Water Coalition request continued support for programs that are essential to maintaining and restoring clean water to the rivers and streams throughout the Chesapeake Bay region and to the Bay itself. Two-thirds of the 18 million people in this region get the water they drink directly from the rivers and streams that flow through the cities, towns and farms throughout our six state, 64,000 square mile watershed. Protecting and restoring clean water is essential for human health and for a robust regional economy.

The efforts to clean the Chesapeake began under President Reagan in 1983. In his 1984 State of the Union speech President Reagan said, “Preservation of our environment is not a liberal or conservative challenge, it's common sense.”

To follow a common sense path to maintain healthy local water and restore Chesapeake Bay, which is critical for our regional economy, we request funding for the following programs in Fiscal Year 2019: U.S. Environmental Protection Agency

Chesapeake Bay Program -- $73.0 million

We support level funding of $73.0 million for the base budget of the Chesapeake Bay Program, which coordinates Chesapeake Bay watershed restoration and protection efforts. At least twothirds of the program’s funds are passed through to the states and local communities for on-theground restoration work through the Small Watershed Grants, Innovative Nutrient and Sediment Reduction Grants, State Implementation Grants, and the Chesapeake Bay Regulatory and Accountability Program grants.

We strongly support the highly successful and popular Chesapeake Small Watershed Grants and the Innovative Nutrient and Sediment Reduction Grants – $6 million each – that Congress

appropriated for the past few years. These are two well-run, competitive grant programs that have contributed significantly to water quality improvements throughout the Chesapeake Bay watershed. These are the Bay Program’s only grants that go directly to on-the-ground restoration efforts by local governments and communities, including to family farms. Without specific Congressional direction, EPA has, in the past, reallocated this grant money for purposes other than local restoration. This is not the time to stop local implementation of restoration work. We strongly support the funding levels that Congress has appropriated each year since FY2015, and we urge you to include language similar to the Senate’s Explanatory Statement for the Department of the Interior, Environment, and Related Agencies Appropriations Bill, 2018, which states, “Chesapeake Bay - The Committee recommends $73,000,000 for the Chesapeake Bay Program. From within the amount provided, $6,000,000 is for nutrient and sediment removal grants and $6,000,000 is for small watershed grants to control polluted runoff from urban, suburban and agricultural lands.”

We urge you to retain similar language in the FY 2019 Interior, Environment and Related Agencies Appropriations Bill, for both the overall Chesapeake Bay Program and for the local grant programs.

Clean Water State Revolving Fund (SRF) --$2.8 billion

This program is critical to any national initiative to provide a Federal Infrastructure Spending Plan and it provides the lifeblood for the 1,779 local governments throughout the Chesapeake region to secure their water infrastructure. The funding level for this Clean Water SRF has eroded over the years as the clean water needs of local communities have increased dramatically. The Choose Clean Water Coalition supports efforts in both the House and the Senate, and within the Administration, to enhance investments in key water infrastructure projects nationwide, and the Clean Water SRF is the single best mechanism to accomplish that goal. We support doubling the current funding for the Clean Water SRF – and that is what we are requesting. This will help to close the gap between federal infrastructure investment in clean water and the known need. This will also dramatically improve water quality and protect human health in our region and across the nation.

These low interest loans are critical for clean water and for ratepayers in the Chesapeake region and nationwide. We urge you to support the $2.8 billion funding level that would provide $590 million in low interest loans to local governments in Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia and the District of Columbia – twice the current level of funding. We also strongly support targeting 20 percent of the Clean Water SRF funds for green infrastructure and innovative projects including those to manage stormwater, which helps communities improve water quality while creating green space, mitigating flooding, and enhancing air quality.

The Clean Water SRF allocates money to the states based on a set formula, which is then used for low interest loans to local governments for critical capital construction improvement projects to reduce nutrient and sediment pollution from wastewater treatment and stormwater facilities; nonpoint sources of pollution, such as farms and development; and other sources. In addition to

the use of these funds on farms and for nonpoint source pollution, it provides assistance for other pollution reduction and prevention activities in rural areas, such as reforestation and forest protection and stream stabilization and restoration. The Clean Water SRF enables local governments in the Chesapeake watershed to take actions to keep their rivers and streams clean. As the list of clean water infrastructure needs in the Chesapeake region continues to expand, we request that Congress double the funding of the Clean Water SRF from the current funding level. Department of the Interior

We support full funding for the USGS to continue to provide the critical science necessary for restoration and protection efforts for fish, wildlife and the 18 million people in the Chesapeake Bay watershed. USGS monitoring and assessment informs decisions made by the Department of the Interior as well as other federal and state partners on issues related to fisheries and associated water quality, waterfowl and their habitats and land protection. In FY 2019, USGS is putting a new focus on habitat conditions supporting important recreational fisheries. Habitat conditions from headwater streams to tidal estuaries will be assessed to help focus, and evaluate, restoration and protection efforts. The efforts will include summarizing the factors affecting fish health in the watershed and opportunities to reduce effects from nutrients, sediment, and toxic contaminants. The findings will also inform the development by the states of their Phase III Watershed Implementation Plans. USGS provides the expertise to restore and conserve coastal wetlands that are critical habitat for the more than one million waterfowl that winter in the Chesapeake region. In 2019 studies of black duck habitats will be used by the U.S. Fish and Wildlife Service to adapt practices on national wildlife refuges, and USGS will begin to address shallow water habitats important for additional recreational species. The USGS will be supplying land-change forecasts to inform land protection. The National Park Service and the Chesapeake Conservation Partnership have requested the USGS to provide forecasts of where development may impact healthy watersheds and vital lands across the watershed. Finally, the USGS is leading an effort to map areas where restoration and conservation efforts will contribute to multiple Chesapeake goals - benefiting people in the watershed as well as fish and wildlife. This mapping is being used by state and federal partners to more effectively focus actions and share available resources. National Park Service -- Chesapeake Regional Programs -- $2.897 million

The National Park Service Chesapeake Bay Office runs a number of small, but very important programs that focus on increasing public access and the use of ecological, cultural and historic resources of the Chesapeake region. Expanding access and public awareness fosters stewardship and protection efforts.

We are requesting level funding for these key programs administered by the National Park Service in the Chesapeake Bay watershed: Captain John Smith Chesapeake National Historic Trail ($389,000); Chesapeake Bay Gateways and Trails ($2.02 million); and support for coordinating these programs through the National Park Service Chesapeake Bay Office ($488,000). In addition, as in the Consolidated Appropriations Act of 2016, we urge you to extend the authorization for the Chesapeake Bay Gateways and Trails program for two more years. Department of the Interior/U.S. Department of Agriculture

National Park Service/U.S. Fish and Wildlife Service /U.S. Forest Service - Land and Water Conservation Fund Priority Projects in the Chesapeake Bay Watershed - $12.752 million

We strongly support full funding for the Land and Water Conservation Fund. In particular, we support continuation of the strategic use of funds from the Land and Water Conservation Fund for priority projects in the Chesapeake Bay watershed. These efforts target conservation funds for critical priority landscapes throughout the Chesapeake Bay region. The following projects would protect nearly 6,000 acres nationally significant resources, such as migratory bird habitat, spawning areas for economically important fish and shellfish, significant forest resources and projects to enhance public access.

• U.S Fish and Wildlife Service- James River National Wildlife Refuge (VA) – $1 million • U.S Fish and Wildlife Service – Rappahannock River Valley National Wildlife Refuge (VA) - $2 million • U.S. Forest Service – George Washington and Jefferson National Forests (VA) - $452,000 • U.S. Forest Service – George Washington and Jefferson National Forests (VA) - $2,300,000 • National Park Service – Captain John Smith Chesapeake National Historic Trail (VA) - $4,000,000 • National Park Service –Richmond National Battlefield Park (VA) - $3,000,000 Thank you for your consideration of these very important requests to maintain funding for these programs which are critical to clean water throughout the mid-Atlantic region. Please contact Peter J. Marx at 410-905-2515 or peter@choosecleanwater.org with any questions or concerns.

1016 Longworth House Office Building U.S. House of Representatives Washington, D.C. 20515

Dear Chairman Culberson and Ranking Member Serrano:

The undersigned members of the Choose Clean Water Coalition request continued support for programs that are essential to maintaining a healthy and vibrant Chesapeake Bay and a strong regional economy that is dependent on the Bay’s resources. The National Oceanic and Atmospheric Administration (NOAA) has a strong and long term presence in the Chesapeake Bay area, and its Chesapeake Bay Office coordinates their efforts with other federal agencies, state and local partners and users of the resource.The programs that are run and/or coordinated by NOAA’s Chesapeake Bay Office (NCBO) are critical for the Chesapeake Bay ecosystem and for its users and residents. These programs provide the science and management assistance necessary for those whose livelihood is to ply the Bay’s waters for fish, crabs and oysters and to the hundreds of thousands of people who fish recreationally in the Bay every year and to the millions who boat, kayak, and/or view wildlife in the region.NCBO is also critical for others, from students learning about science with hands-on experiences to local governments and residents along the shore to have the latest information to prepare for coastal flooding and hurricane emergencies.Utilizing sound science in the management of Chesapeake Bay resources is critical for our regional economy. We request the following funding levels in Fiscal Year 2019: Department of CommerceNational Oceanic and Atmospheric Administration – Chesapeake Bay Office (NCBO) - $9.25 millionThe NCBO was established by Congress in 1992 to provide resources, technical assistance and coordination through its two branches: the Ecosystem Science and Synthesis Program, which focuses on applied research and monitoring in fisheries and aquatic habitats; synthesis, and analysis to describe and predict Bay ecosystem processes; and technical assistance to Chesapeake Bay decision makers. The second branch is Environmental Literacy and Partnerships Program, which focuses on the development of K-12 and higher education environmental science education programs; strategic partnerships with the Chesapeake Bay Program and other government, university, and nonprofit partners; and delivering NOAA products, services, and programs to targeted audiences.The Office’s programs play a key role in implementing the voluntary Chesapeake Bay Agreement among the states and is critical to ensuring that commitments are met to: • restore native oyster habitat and populations in 10 tributaries by the year 2025; • ensure students graduate with the knowledge and skills to protect and restore their local watershed; • sustain a healthy blue crab and striped bass (rockfish) population; and • maintain a coordinated watershed-wide monitoring and research program. The specific breakdown of our request for $9.25 million for the NCBO is as follows: • Oyster Restoration - $4 million The Chesapeake Bay oyster population is less than 1 percent of historic levels and the ecosystem functions associated with oyster reefs, including fish habitat and nitrogen removal, are similarly diminished. NCBO has built on past success to restore entire tributaries, with self-sustaining oyster populations and to measure the resulting ecosystem benefits. NCBO works with federal, state and private partners to plan and implement this tributary-scale restoration in both Maryland and Virginia. Funding for oyster restoration in the Chesapeake was also done through the U.S. Army Corps of Engineers, but they have not received funding in a number of years. Funding for this key program has eroded sharply since FY2010, and without Army Corps funds, NOAA is the only Federal agency left to continue this key restoration program.

• Environmental Education and Literacy - $3.5 million NCBO encourages and supports efforts in K-12 and higher education to develop and implement comprehensive environmental literacy programs. NCBO runs the nationally recognized Bay Watershed Education and Training Program (B-WET) - a competitive grant program for hands-on watershed education for students and teacher training to foster stewardship of the Chesapeake Bay. B-WETs funding has steadily eroded since 2010 and should be restored to at least that level.

• Fisheries Science and Management - $1 million Recreational and commercial fisheries are among the most valuable economic activities for the coastal communities of the Bay. Fishing pressure, habitat loss, invasive species, degraded water quality, and toxics affect these important fisheries, including striped bass (rockfish), blue crabs, oysters, menhaden and cow-nosed rays. NOAA supports well-managed Chesapeake Bay fisheries and the habitats they depend on by delivering timely ecosystem-based science and forecasts to science and management partners. Historically, the states have looked to NCBO to conduct stock assessments, particularly for blue crabs. Each stateoften has its own assessment data, but NOAA’s ability to look at the stocks for the entire Bay is critical. Each stock assessment costs approximately $500,000.

• Chesapeake Bay Interpretive Buoy System (CBIBS) - $750,000 The Chesapeake Bay ecosystem is dynamic, and water quality is driven by variable local and regional forces. High quality data is needed to monitor, understand, forecast, and provide information for science-based decisions and needs to be continuously measured and summarized. NCBO maintains the CBIBS, a network of 10 buoys that collects and relays near-real-time data to users. This supports public access to the Bay and boater safety on the water through the Captain John Smith Chesapeake National Historic Trail, administered by the National Park Service. Thank you for your consideration of these very important requests to maintain funding for programs that are critical to the health of the Chesapeake Bay and its natural resources. Please contact Peter J. Marx at 410-905-2515 or Peter@ChooseCleanWater.org with any questions or concerns.

The Honorable Ryan ZinkeSecretary of the InteriorDepartment of the Interior1849 C Street, NWWashington, D.C. 20240

Re: Comments on the 2019-2024 Draft Proposed National Outer Continental Shelf Oil and Gas Leasing Program

Dear Secretary Zinke:

We, the undersigned members of the Choose Clean Water Coalition, urge you to exempt ALL of the states on the Atlantic Coast – not just Florida - from offshore oil and gas drilling and development. This proposal would clearly endanger the nation’s largest and most productive estuary, the Chesapeake Bay, but would also impact valuable estuaries, beaches, fisheries and tourism economies along the entire Atlantic seaboard.

In the Mid-Atlantic, we are keenly aware that any large spill, even one far smaller than the BP Deepwater Horizon disaster, could easily have disastrous consequences for Chesapeake Bay. For example, Chesapeake Bay is the largest source of blue crabs in the United States. Every year the entire next generation of crabs, in their larval stage, are swept into the Atlantic where they mature before making their way back into the Bay to repopulate the species. An oil spill at this time, when the entire future crab population is vulnerable, could wipe out this valuable economic resource. The crab population is also an integral part of the Bay’s food chain and such an accident could imperil the future of the Bay ecosystem for a generation.

You have exempted Florida from this proposal because of its beaches and estuaries, but we want you to know that it is not unique. Florida is home to four estuaries that have been designated by Congress as having special national significance – though only one is on the Atlantic coastline. However, the rest of the Atlantic Coast, in addition to Chesapeake Bay, has 13 estuaries that are of special national significance and are protected through the National Estuary Program.

The valuable resources – beaches, estuaries, commercial and recreational fisheries, migratory birds and waterfowl, etc. – that abound on the Atlantic Coast are too valuable a resource to endanger by this poorly thought out proposal. This proposal is opposed by state and local governments up and down the Atlantic coast and local control and deference should lead you to listen to their concerns.

The Chesapeake Bay is also home to two of the largest ports on the East Coast, as well as to Naval Base Norfolk – the largest naval base in the world. Any large-scale offshore oil and gas drilling and development could disrupt commercial shipping from shore-based impacts and impede the readiness of our military - and a catastrophic spill in this area would inhibit the daily functions of this essential military base. The Blue Ribbon Finance Panel established under the Bush Administration concluded that the value of the Chesapeake Bay to the U.S. economy to be worth in excess of a trillion dollars – and that was more than a decade ago. This is a valuable resource and a national treasure that should not be trifled with.

We are very concerned about the potential catastrophic impacts to Chesapeake Bay, and other priceless areas along the Atlantic Coast. We urge you to exempt the entire Atlantic Coast from this shortsighted and dangerous proposal. Thank you.

The undersigned members of the Choose Clean Water Coalition want to express their thoughts on two key issues that will be discussed at the Principals’ Staff Committee (PSC) meeting in March. First, is the decision regarding inclusion of the model results of climate change in the Phase III Watershed Implementation Plans (WIPs). Second, is the approach being used to help satisfy West Virginia and New York’s “special case” allocations.

Inclusion of Climate Change in Phase III WIPs

Members of the Coalition are deeply concerned and disappointed to learn that the PSC was unable to come to a consensus on whether to communicate the Bay modeling estimates of the effects of climate change in the Phase III WIPs. This decision is short-sighted. Inclusion of the model estimates would be an important public acknowledgement of the challenges ahead, could inform near-term strategies for qualitatively addressing climate change impacts in the Phase III WIPs, and would set the stage for future actions.

In addition, in the absence of a definitive commitment to address pollution loads attributable to climate change, it is imperative that the Bay Program partners commit the resources necessary to refine the climate modeling and assessment framework that is needed to support final decision-making in 2022 on how to address climate-attributable pollution loads. In the near term, the Bay Program partners must also commit the resources necessary to investigate the climate resilience and climate co-benefits of restoration practices and to use this information when developing their Phase III WIPs.

Closing the Gap on the “Special Cases”

We also want to express our concern about the approach currently being considered to help close the gap for the “special case” allocations for New York (NY) and West Virginia (WV). Our issue is not with the additional allocations, per se, as we believe that NY and WV are justified in their request that the agreement reached in 2009, regarding additional allocations, be honored. Our concern stems from: (1) the reliance on additional NOx reductions that are expected to occur by 2030; and (2) the absence of any consideration that increases in ammonia emissions since 2009 should be offset.

Reliance on Projected NOx Reductions from State and Federal CAA Regulatory Programs

According to the February 12, 2018 presentation to the Water Quality Goal Implementation Team[1] an additional 1.6 million pounds of nitrogen reductions, almost entirely from NOx reductions, is projected to be available by 2030. These modeled reductions are based on expected benefits from the implementation of state and federal Clean Air Act (CAA) regulatory programs.

These expected reductions are far from certain. The Environmental Protection Agency (EPA) has recently proposed to repeal several national regulations, some of which are being relied upon for these reductions. According to the October 31, 2017 webinar hosted by the Chesapeake Bay Program,[2] the future air modeling includes the benefits of the “CAFE Rule” and implementation of the 2015 ozone standard of 70 ppb, among others. Since there was no specific definition given for the “CAFE Rule”, we are interpreting it to apply to regulations that improve automobile fuel economy standards and reduce greenhouse gases.

On August 17, 2017 EPA announced their Reconsideration of Final Determination on the Appropriateness of the Model Year 2022-2025 (and 2021) Light Duty Vehicle Greenhouse Gas Emissions Standards under the Midterm Evaluation.[3] EPA is reconsidering whether the light-duty vehicle greenhouse gas (GHG) standards previously established for Model Year 2022-2025 are appropriate under Section 202 (a) of the Clean Air Act (CAA) and whether the light-duty GHG standards established for Model Year 2021 remain appropriate.

In addition, on November 16, 2017, EPA proposed to repeal the emission requirements for glider vehicles, glider engines, and glider kits from GHG standards for heavy-duty trucks.[4] Glider vehicles are new truck bodies that contain older engines. The proposed rule would remove the requirement for these engines to meet emission standards applicable in the year of assembly of the new glider vehicle.

Failure to implement the Light Duty Vehicle GHG standards and to regulate the glider industry under EPA’s Phase 2 rule could result in the failure to achieve millions of pounds of NOx reductions nationwide and will affect modeled nitrogen reductions in the Chesapeake Watershed.

The EPA has also indicated interest in revisions to the New Source Review rule for power plants.[5] This rule has been a major driver in the significant NOx reductions in the past ten years and changes to the rule could mean expected reductions will not occur. Finally, the implementation of the 2015 ozone standard is also in jeopardy, as EPA missed deadlines for promulgating the initial area of designations related to NAAQS for ozone and final agency action by EPA remains unclear.[6]

These actions, taken together, indicate that the reliance on projected NOx reductions from state and federal CAA regulatory programs is, at best, now in question. It is worth noting that these actions will also result in more emissions of greenhouse gases that contribute to climate change, further exacerbating our Bay restoration challenges.

Increased Ammonia Emissions and Deposition

One reason for the shortfall in expected nitrogen reductions from atmospheric deposition projected during the development of the Chesapeake Bay Total Maximum Daily Load is increases in ammonia emissions and deposition (see figure below taken from slide 39 in the October 31, 2017 air webinar). These increases are due, in part, to increases in ammonia emissions from agriculture (see slide 58). To that end, we note there have been substantial increases in poultry production in several states in the Chesapeake Watershed since 2010 (see table below) and poultry production is a known source of ammonia. Any additional nitrogen loads that resulted from these increases in poultry production should be offset by the states where the increases occurred, in accordance with Appendix S of the Bay TMDL and EPA expectations regarding state procedures to account for new and expanded sources of pollution loads. These additional reductions could be used to help close the gap on the special cases for NY and WV.

Additional nitrogen loads associated with ammonia from animal operations that occur between 2009 and 2025 could be modeled using a similar approach as that used to estimate NOx benefits. The states responsible for these additional loads would receive a smaller allocation to offset these new loads.

We sincerely thank you and the rest of the Principals’ Staff Committee for your leadership on Bay restoration and thoughtful consideration of our input. In addition, we welcome the opportunity to work with you and the other Chesapeake Bay Program partners in the coming months on the development of quality Phase III WIPs. Please contact Chante Coleman at 443-927-8047 or colemanc@nwf.org with any questions or concerns.

Please accept the following comments from the undersigned members of the Choose Clean Water Coalition on Exelon Generation Company’s (hereafter, Exelon) application for Clean Water Act (CWA) Section 401(a)(1) Water Quality Certification. Exelon is requesting this certification as a necessary precondition of its related application to the Federal Energy Regulatory Commission (FERC) for a new 50-year license for the continued operation of the Conowingo Dam Project. Collectively, our groups represent hundreds of thousands throughout the Chesapeake Bay watershed interested and directly affected by the Maryland Department of the Environment's (MDE) decision to grant water quality certification to Exelon. On behalf of the undersigned members, we urge you to ensure that Exelon plays a large role in mitigating the significant pollution to the Chesapeake Bay that comes from the Susquehanna River and the Conowingo Dam.

We recognize that the Conowingo Dam has played a crucial role in curtailing the sediment pollution that travels down the Susquehanna River and eventually reaches the Bay. However, over time, the Dam’s ability to trap pollution has diminished due to sediment build up behind the Dam. As studies have demonstrated that the Dam itself has the ability to negatively impact water quality, Maryland must ensure that impacts of Conowingo Dam’s operations on downstream water quality are addressed and mitigated as part of the new operating permit.

Furthermore, Maryland cannot count on FERC to impose conditions needed to prevent or offset Project-induced scouring of sediment and associated nutrients concentrated behind the Dam.[1] Unless Maryland imposes such conditions, its water quality goals and pollution control measures would be undermined by catastrophic sediment and nutrient discharges during one or more predicted high-flow events during the requested license period.[2]

Exelon has failed to provide sufficient information about the current and future effects of the Conowingo facility’s ongoing operation on water quality, and has failed to propose measures to offset those effects. Exelon has also failed to account for the additive effects of climate change upon sediment scouring, and Maryland must consider these impacts in its certification analysis.

We therefore urge Maryland to impose conditions requiring Exelon to participate as a financial partner in a specific plan[3] for large scale pollution reduction projects, on-the-ground restoration projects, best management practices – such as, funding the planting and maintenance of forests and riparian buffers - and other projects to reduce upstream pollution and mitigate downstream impacts in order to maximize the likelihood that applicable water quality standards and other CWA requirements will eventually be met. In addition, as explained below, the permit must include provisions for periodic review to evaluate the progress of these measures, their effects, and the availability of new monitoring data and pollution control technologies. If MDE chooses not to impose strong conditions on this certification, Maryland should deny the application outright due to its deficiencies.

1. Legal Background

Application & Procedure

Section 401 of the CWA gives states the authority to review any federally-permitted or licensed activity that may result in a discharge to navigable waters, and to condition the permit or license upon a certification that any discharge will comply with key provisions of the CWA and appropriate state laws.[4] These provisions include Sections 301, 302, 303, 306 and 307.[5] This expansive certification authority preserves a substantial role for the states in protecting water quality, even when permitting authority lies solely in federal hands. When Section 401 applies to a project due to a potential discharge, the certification process applies to the “activity as a whole,” relating in any way to the existing or proposed discharge.[6] In the case of a hydroelectric Dam project, for example, a certifying state must apply the certification process to a wide range of actions such as the trapping of nutrients and sediment behind the Dam, changes to stream flow and water temperature, increases in total dissolved gas levels below the Dam, and the release of sediments and nutrients below the Dam during both routine operation and increasingly common storm events.[7]

Section 401(d) of the CWA directs states to include in their certifications any effluent limitations, monitoring requirements, and other limitations and conditions in order to ensure that any discharge will comply with all applicable federal and state water quality laws. Of particular relevance to the license application for the Conowingo Dam are Sections 302 (federal water quality related effluent limitations) and 303 (state water quality standards, implementation plans and total maximum daily loads (TMDLs)), and corresponding provisions of Maryland law.[8]

If a proposed license or project will not comply with the applicable laws, a state must either deny a Section 401 certification, or conditionally grant certification with “any effluent limitations and other limitations, and monitoring requirements necessary to assure” compliance with the law.[9] If a state denies certification, the federal permit or license for the project may not be issued. In this way, Section 401 grants states the authority to halt projects that illegally harm water quality. Alternatively, in cases where specific permit conditions would ensure compliance with the law, a state may conditionally grant certification and these conditions would become binding limitations on the permit or license.[10]

Scope of Authority to Impose Conditions

States have extensive authority to deny or impose conditions during the Section 401 certification process. As EPA has explained in recent guidance, “[c]onsiderations can be quite broad so long as they relate to water quality,” and “[c]ertification may address concerns related to the integrity of the aquatic resource and need not be specifically tied to a discharge.”[11] In addition to ensuring compliance with the statutorily enumerated provisions of the CWA (Sections 301, 302, 303, 306 and 307), certifying states must assure compliance with “any other appropriate requirement of State law.”[12] Courts have consistently interpreted this provision to mean that all state water quality standards must be satisfied.[13] State water quality standards include designated uses for water bodies,[14] as well as the quantitative (numeric) and qualitative (narrative) criteria needed to achieve the designated uses,[15] and anti-degradation.[16] Therefore, certifying states have the obligation to ensure compliance with both numeric and narrative water quality standards and the TMDLs used to achieve compliance with them, and use designations established to protect recreational uses and aquatic life.[17] Indeed, courts have repeatedly allowed certifying states to deny certifications based on the need to comply with state water quality standards, including non-quantitative standards such as the protection of aquatic life and shellfish habitat.[18]

In the case of Exelon’s application for certification, the legal mandate to expansively enforce all state water quality standards prevents Exelon from simply relying on the Chesapeake Bay TMDL to absolve itself of any obligation to address the sediment pollution from the Dam. The Chesapeake Bay TMDL does not include a wasteload or load allocation to accommodate discharges of sediment or nutrients scoured from behind the Dam, and does not purport to relieve Exelon of its responsibility for such discharges. MDE must instead look beyond the TMDL and independently ensure that the project’s sediment discharges do not interfere with attainment of the Chesapeake Bay TMDL, or with the designated uses which ensure support of estuarine and marine aquatic life and shellfish harvesting.[19] MDE must also ensure compliance with Maryland’s narrative water quality standards, which prohibit pollution by any material in an amount that would “[c]hange the existing color to produce objectionable color for aesthetic purposes” or “[i]nterfere directly or indirectly with designated uses,” among other things.[20] In other words, MDE may not grant Section 401 certification unless it imposes conditions which prevent the violation of all numeric and narrative water quality standards, and all designated uses.

2. MDE Should Either Deny Certification or Establish Conditions on its Certification Sufficient to Offset Project-Induced Effects on Nutrient and Sediment Discharges.

Because the enormous quantity of sediment accumulated behind the Conowingo Dam is subject to massive overflow in the event of major storm events, causing catastrophic damage, there is no way that MDE can issue a certification that operation of the Dam and resulting discharges during the life of the requested operating license will at all times comply with applicable water quality standards, TMDLs and other requirements. Therefore any Section 401 certification for the Conowingo Dam Project should include conditions requiring Exelon to play a role in the cleanup efforts for the Conowingo Reservoir. While it is true that the origin of the sediment and nutrients from behind the Dam is mostly from upstream of Conowingo, the Dam does alter the form of these sediments and nutrients and the timing by which they enter the Chesapeake Bay.[21] For example, the Dam changes the grain size profile of downstream sediments, preferentially passing finer sediments that tend to stay in suspension longer, with potential negative effects on downstream water clarity and underwater grasses. Coarser materials are preferentially retained by the Dam, again with negative downstream impacts as these materials are needed to build and protect desirable habitats, like islands and shorelines, for fish spawning and rearing, mussels and Submerged Aquatic Vegetation. These are all incremental impacts directly, indirectly, or cumulatively caused by Conowingo Dam’s impoundment and artificial release of the Susquehanna River.

In addition to these impacts, scouring events caused by high flows mean more nutrients and sediments will flow downstream than are attributed to upstream sources. The Dam has historically trapped an average of 50-67% of the annual sediment load (1.5 to 2 million tons),[22] along with the nitrogen and phosphorus attached to the trapped sediment. If not for the Conowingo Dam, this load would have been delivered to the lower Susquehanna River and Chesapeake Bay at normal rates. The Dam and its reservoir have produced an enormous artificial repository of sediment and associated nutrients that can be scoured by high flow events, re-mobilized, and delivered downstream by large storm-induced flows.[23] These scoured loads produce additional pollutant loads at times when the downstream receiving waters are already vulnerable, receiving their heaviest loads of suspended pollution from the Susquehanna River watershed.[24]

A recent study from the University of Maryland Center for Environmental Science (UMCES) shows increased mobilization of harmful nutrients during these scour events.[25] As explained in the study, much of the phosphorus released during scour is, initially, in a form that is not bioavailable (due to binding with iron). However, some particles do settle in the mid-Bay and others are eventually transported there. Under conditions in the mid-Bay, particularly anoxia, this phosphorus can become available for uptake by phytoplankton and, therefore, can contribute to eutrophic conditions, including depressed dissolved oxygen. There is a substantial amount of adsorbed ammonium in the sediments behind the Dam, at concentrations exceeding those in similar sediments downstream. This ammonia will be mobilized during scour events adding nitrogen loads to downstream waters.

The threshold flow needed to produce scouring will be surpassed many times during the requested license period.[26] Scoured loads deliver much greater quantities of sediment and nutrients to the Chesapeake Bay than the natural loading that would have occurred during the same flow events had the Project not been in place. Particularly in the case of very large storms – such as 25-year, 50-year, 75-year, and 100-year return interval flow events, for which there is a substantial to reasonable likelihood of occurrence during the requested license period, as discussed below – project- induced scouring could overwhelm pollution reductions undertaken upstream in the lower Susquehanna River watershed.

The effects of climate change will also likely lead to more frequent and severe scouring events at the Project. Over the past century or so, the Northeast (including the Chesapeake Bay region) has experienced increases in the average annual temperature, amount of precipitation, and amount of extreme precipitation events, and these trends are expected to continue and strengthen in the coming years due to climate change.[27] These significant climate-related impacts must be considered by MDE during the certification process because they will likely increase the predicted levels of scouring threshold exceedances that were originally assumed for the Project.

MDE cannot rely on the Chesapeake Bay TMDL to account for the effects of climate change, and must independently analyze the best available climate projections for the region in order to account for these additive impacts. Fundamentally, MDE has a legal obligation to consider more than mere TMDL compliance (or noncompliance) because MDE must also analyze whether the Project as a whole will interfere with the river’s designated uses[28] and narrative water quality standards under the expected climate conditions in the coming decades. The Chesapeake Bay TMDL does not analyze the effects of the Conowingo Dam on Maryland’s state water quality standards under any conditions, much less under the projected future climate in the Northeast, and this climate analysis is an essential component of the state certification process. Furthermore, any increases in nutrient and sediment pollution from the Dam due to climate change were simply not considered in the Chesapeake Bay TMDL.

The TMDL’s assumptions about pollution levels did not account for the additive effects of climate change. In fact, only a very vague and preliminary assessment of climate change was completed for the Chesapeake Bay TMDL as a whole in 2010, due to limitations in the modeling that was available at the time.[29] Although the TMDL’s Midpoint Assessment is incorporating more up-to-date information about the impacts of climate change,[30] it remains unclear precisely how climate change impacts will change the TMDL load allocations, if at all.[31] Moreover, there are no indications the Midpoint Assessment will consider the impacts of climate change on the Conowingo Dam’s specific effects. MDE must complete its own, independent analysis of the effects climate change will likely have on the Conowingo Dam Project’s impacts to Maryland’s water quality standards. This is consistent with the “Goals and Outcomes” in the Chesapeake Watershed Agreement of 2014, p. 14, which call on the Bay Partners to address the need for “climate resiliency.” In the Agreement the Bay Partners committed to, among other things, “pursue, design and construct restoration and protection projects to enhance the resiliency of Bay and aquatic ecosystems from the impacts of coastal erosion, coastal flooding, more intense and frequent storms and sea level rise.” These objectives must be considered by MDE and Exelon in the context of any license renewal for the Conowingo Dam.

Finally, the Lower Susquehanna River Watershed Assessment (LSRWA) had some key findings in terms of the Dam’s effects on dissolved oxygen, water clarity, and chlorophyll a concentrations (See Attachment 1) - as outlined in the attached Comment from the Chesapeake Bay Foundation (See Attachment 2). We also attached a letter from Waterkeepers Chesapeake and an independent third-party review that further discusses this issue in detail (See Attachment 3).

3. Recommendations

Under the CWA, Maryland is responsible for setting forth any effluent limitations or any other conditions or limitations and monitoring requirements that may be necessary to assure compliance with the Act, including applicable water quality standards and the Chesapeake Bay TMDL. In order to preserve the state’s water quality standards, the state must address two separate problems - the sediment that is trapped in the Dam’s reservoir and the sediment now flowing through the Dam due to its inability to trap any more sediment. Any Section 401 certification issued to support a renewed FERC license for the Conowingo Dam Project must include: (1) a number of conditions requiring Exelon to contribute financially to a specific mitigation and cleanup plan; (2) a detailed analysis of the effects of climate change; (3) a detailed analysis of the Conowingo Dam dredging pilot project that considers the potential water quality effects of adsorbed ammonia in Conowingo Reservoir that would be released during dredging; and (4) adaptive management to take into account changing conditions and pollution reduction technologies that will occur during the life of the license, as discussed below.

The mitigation and cleanup plan should include large scale pollution reduction projects, on-the-ground restoration projects, best management practices, and other projects to reduce upstream pollution and mitigate downstream impacts. For instance, measures could include financial assistance for nutrient reduction projects upstream of the Dam, in Maryland, Pennsylvania, and New York such as agricultural conservation practices, wastewater treatment plant upgrades, green infrastructure, and restoration of the system’s “natural filters” (i.e., propagation of freshwater mussels and oyster restoration downstream). The goal is to have mitigation efforts in place to ensure pollution reductions equivalent to the maximum amounts of nutrients estimated to be associated with sediments scoured from behind the Dam and any additional pollution produced as a result of the Dam’s presence and operation.

We recommend that MDE require a number of cleanup actions as a condition on the license because one type of cleanup effort alone will not be enough. In assessing whether to dredge behind Conowingo Dam as one cleanup option, MDE must consider the potential water quality effects of adsorbed ammonia in the reservoir that would be released during dredging. We recommend that additional modeling scenarios be run with the new information from the Conowingo Dam dredging program, along with a review of other recent studies, about the fate, transport, form, and concentrations of nutrients and sediments from the Conowingo Reservoir, to assess the impact on water quality standards attainment. The State must act fast - if Maryland does not deal with the trapped sediment behind the Dam, all of our efforts to clean up the bay and meet the state’s 2025 TMDL goals could be devastated by one major storm. Maryland cannot wait to start these cleanup efforts – Maryland must partner with Exelon and other stakeholders and start the process now. Exelon must contribute financially to a specific plan for removing sediment and must act as a partner in implementing other remedial measures.

Finally, the certification must require that the measures to reduce or eliminate pollution, including sediment overflow that are incorporated into the license reflect the need for adaptive management. Experience in working to restore the Bay and its watershed over the past several decades has taught us that as we proceed, new information becomes available, new pollution control measures will become available, and measures that today seem prohibitively expensive may become cost-effective in the future. For example, if beneficial reuse of dredged material from behind the Dam becomes a possibility, then enormous opportunities to reduce and prevent pollution will become available. Other new technologies not yet known will certainly emerge, and as performance monitoring data becomes available we will become smarter about which measures are most cost-effective. This is why in the Principles laid out on the first page of the Chesapeake Watershed Agreement of 2014 the Partners committed to “[a]daptively manage at all levels of the Partnership to foster continuous improvement” (emphasis in original).

In the context of the 50-year lifetime of the anticipated license renewal for the Conowingo Dam, we recommend that the certification require as a condition of the license that the pollution control strategy be revisited at least every five years at which point the licensee, MDE and other interested parties will conduct a comprehensive assessment of the performance of the pollution control measures then in place, and opportunities to employ new technologies and measures, and accomplish the goals of pollution reduction and prevention as cost-effectively as possible so as to get the greatest environmental protection for the funds expended. Because of the importance of the Dam to the entire community, there should be an opportunity for public participation and opportunity for comment. Universities and other sources of expertise should be included in the review process.

If MDE chooses not to impose strong conditions on this certification, Maryland should deny the application outright due to its deficiencies.[32]

We thank you for the opportunity to comment on this important state action.

[3] This plan needs to account for the removal of at least 4 million tons of sediment from the Conowingo reservoir annually until 100 million tons are removed. The same level of sediment must be maintained thereafter.

[7] Due to climate change, it is predicted that all parts of the U.S. will see increases in storm intensities, and the Northeast will also experience a 58% increase in the average number of days with very heavy precipitation. Garfin et al., Assessment of Climate Change in the Southwest United States: A Report Prepared for the National Climate Assessment (2013), at 6, 8, http://www.swcarr.arizona.edu/sites/all/themes/files/SW-NCA-color-FINALweb.pdf; Hall and Stuntz, Climate Change and Great Lakes Water Resources (Nov. 2007) at 6-7, http://online.nwf.org/site/DocServer/Climate_Change_and_Great_Lakes_Water_Resources_Rep ort_FI.pdf.

[11] 33 U.S.C. § 1341(a)(1) (stating that certification is required when an activity “may” result in a discharge); see also U.S. EPA, Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection Tool for States and Tribes (2010) at 4, https://www.epa.gov/sites/production/files/2016-11/documents/cwa_401_handbook_2010.pdf (“EPA § 401 Guidance”).

[17]Anacostia Riverkeeper Inc. v. Jackson, 798 F. Supp. 2d 210, 238 (D.D.C. 2011) (holding that a state’s total maximum daily loads for a water body must ensure protection of all state water quality standards, including all designated uses and water quality criteria, in order to satisfy the CWA).

[23]See FSR 3.15 at i, 10-11; Michael J. Langland & Robert A. Hainly, Changes in Bottom- Surface Elevations in Three Reservoirs on the Lower Susquehanna River, Pennsylvania and Maryland, Following the January 1996 Flood—Implications for Nutrient and Sediment Loads to Chesapeake Bay (1997) (hereafter, “Langland & Hainly (1997)”); Langland (2009); Robert M. Hirsch, Flux of Nitrogen, Phosphorus, and Suspended Sediment from the Susquehanna River Basin to the Chesapeake Bay during Tropical Storm Lee, September 2011, as an Indicator of the Effects on Reservoir Sedimentation on Water Quality (2012) (hereafter “Hirsch (2012)”).

[25] Cornwell, J., M. Owens, H. Perez, and Z. Vulgaropulos. 2017. The Impact of Conowingo Particulates on the Chesapeake Bay: Assessing the Biogeochemistry of Nitrogen and Phosphorus in Reservoirs and the Chesapeake Bay. UMCES Contribution TS-703-17. Final Report to Exelon Generation and Gomez and Sullivan. July 28, 2017.

The undersigned members of the Choose Clean Water Coalition want to express their strong support for adoption of both the numeric and programmatic proposals for addressing climate impacts during the development and implementation of Phase III Watershed Implementation Plans (WIPs). Over the last year, these proposals have been developed by the Chesapeake Bay Program (CBP)’s Climate Resiliency Workgroup, in collaboration with the CBP Modeling Workgroup, and have been extensively reviewed by the Scientific and Technical Advisory Committee. The proposals represent a reasoned and pragmatic approach to addressing climate change effects on Bay restoration and, in the case of the numeric proposal, is supported by rigorous scientific analyses.

Adoption of the numeric proposal - the explicit quantification of climate change effects on the attainment of water quality standards - is necessary, because the Bay jurisdictions are bound by their commitment in the Chesapeake Bay Watershed Agreement of 2014 to address the impacts of climate change. This should be done consistent with legal precedent, and the Partnership’s strong history of using best available science in its management decision-making.

Section 10.5 of the Chesapeake Bay TMDL (“Factoring in Effects from Continued Climate Change”) calls for action to “incorporate new scientific understanding of the effects of climate change into the Bay TMDL [...] during the mid-course assessment.” Federal courts have approved settlement agreements that require consideration of climate impacts arising from legal challenges to nutrient TMDLs, and, nationwide, newer TMDLs are accounting for climate change as an important factor in calculating watershed pollutant rates and the assimilative capacity of receiving waterways.

The Chesapeake Bay Program partnership has a long history of commitment to sound science. In developing the Bay TMDL and in the ensuing implementation, the Partnership has relied upon rigorous scientific research, expert panels, and updated modeling tools to support planning and management decision-making. Confidence in this decision-making is fundamentally connected to the thorough quality assurance and peer review that undergird the Chesapeake Bay Program’s scientific processes. To reject policy proposals that account for climate change impacts on Bay restoration efforts would constitute a repudiation of the commitment to decision-making based upon the best available science. Furthermore, the Bay TMDL and Chesapeake Bay Program are viewed nationally, and even internationally, as potential models for ecosystem restoration. The integrity and credibility of the Partnership as leaders in ecosystem restoration could be compromised if climate change impacts are not considered both numerically and programmatically in the Mid-Point Assessment.

The numeric and programmatic policy approaches will set a precedent for development of adaptive management strategies at a crucial period in the restoration process. Adopting these approaches today will help to ensure that resulting adaptive management strategies are more sophisticated and tested before the even worse effects of a changing climate take place after the TMDL’s 2025 deadline. The policy approaches will also help mitigate impacts of more severe storms and increased pollution loads and water temperatures on local rivers and streams in the near-term, thereby protecting water quality not just in the Bay, but throughout the watershed.

Finally, the programmatic approach commits the Chesapeake Bay Program to establish a framework that will drive guidance and provide an incentive for study and design of climate-resilient BMPs. This in turn will encourage implementation of climate-responsive BMPs that will be relied upon for their restoration value years beyond the 2025 deadline. Adoption of the proposed policies will also ensure demand for continued agency-led study and monitoring of climate impacts to the Bay and its restoration.

We thank you and the rest of the Principals’ Staff Committee for your leadership on Bay restoration and for your thoughtful consideration of our input.

The undersigned members of the Choose Clean Water Coalition urge you to cosponsor Senator Chris Van Hollen’s Chesapeake Bay Farm Bill Enhancements Act of 2017, which should be introduced soon. This bill is essential to maintaining and restoring clean water in the Chesapeake Bay watershed.

There are 87,000 farms in the six-state Chesapeake region. Those that are well run protect their water resources and add much to our landscape, environment, and economy. We want to ensure that these responsible farms and farmers remain economically viable. Nutrient and sediment pollution from farms is by far the largest source of contamination in the Chesapeake Bay and its tributaries. Recognizing this, the 2008 Farm Bill established the Chesapeake Bay Watershed Initiative that provided $238 million over five years to producers in the region to apply conservation practices on their farms that would help to restore and/or protect water quality.

The 2014 Farm Bill created the Regional Conservation Partnership Program (RCPP) that replaced a number of geographic programs, including the Chesapeake Initiative. Unfortunately, the RCPP has provided a significantly reduced level of support for conservation in the Chesapeake region providing only 22 percent of the funds that were previously allocated under the Chesapeake Initiative in the prior Farm Bill.

Senator Van Hollen’s Chesapeake Bay Farm Bill Enhancements Act of 2017 makes some important changes to the RCPP that will fix many of the problems the Program had in our region. Farmers will get critical funding for conservation practices that will lead to cleaner streams and rivers as well as a healthier Chesapeake Bay.

Thank you for your consideration of this important request that is critical to clean water throughout the Chesapeake Bay region. Please be an original cosponsor of the Chesapeake Bay Farm Bill Enhancements Act of 2017.

On behalf of the more than 230 member groups of the Choose Clean Water Coalition, we strongly urge you to oppose an amendment Congressman Bob Goodlatte plans to offer on the Interior and Environment Appropriations Bill. The amendment undermines the successful cooperative federalism demonstrated by the Chesapeake Bay clean up and would severely hamper progress being made to restore and protect local waters.

The Chesapeake Bay is North America’s largest estuary and its vast watershed covers portions of six states - Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia - and the District of Columbia (DC). The Bay is a national treasure and an economic engine for the region. After decades of unsuccessful attempts to restore the Chesapeake Bay, the six Chesapeake Bay states and DC agreed to a geographically-tailored clean up process – and it is working.

Each state has drafted and is following its own Watershed Implementation Plan reflecting the state’s needs and detailing how it plans to reduce water pollution in the region. All of these plans have been approved by the U.S. Environmental Protection Agency (EPA) and incorporate an adaptive management approach to let each state respond to lessons learned throughout the restoration effort.

The clean up is working and there have been clear results in the Bay watershed. The current process has given the states more control than ever in seeking solutions to the degraded waters of the region, while utilizing federal resources to help the states meet their commitments. While the effort has been challenged, including in Federal Court, it has been upheld by the United States Court of Appeals and retains widespread support throughout the watershed.

The Goodlatte Amendment is an attempt to stop a federal-state-local cooperative restoration program that is working. The Chesapeake Bay jurisdictions have no desire to end their coordinated efforts and significant investments in their clean up plans. In 2014, the governors of the Bay states and the mayor of DC all reaffirmed their commitment to the restoration effort by signing a new Chesapeake Bay Agreement, and confirmed their continued support when they met this past June.

Two and a half years ago, Congress passed the Chesapeake Bay Accountability and Recovery Act by a unanimous vote of 416-0 in the House. This program is being successfully implemented by EPA and the states, and we believe that accountability is a critical element of keeping the Chesapeake Bay cleanup effort on track. This amendment would hinder the restoration effort by undermining accountability when we need it most and reverting to the failed policies of the past.

For these reasons, we urge you to protect the investments and commitments made by each of the Bay watershed states and vote “NO” on the Goodlatte Amendment.

RE: Recommendations for new metrics approach for the Phase I MS4 permit renewals

Dear Assistant Secretary Buhl,

The undersigned members of the Choose Clean Water Coalition would like to thank you and the Water Management Administration for inviting this broad coalition of clean water advocates to help create and comment on the new Phase 1 MS4 permits in Maryland. The Choose Clean Water Coalition consists of over 200 diverse nonprofit organizations throughout the Chesapeake Bay watershed, with over 75 based here in Maryland. The Coalition serves as a strong and united advocate for restoring the thousands of streams and rivers flowing to the Chesapeake Bay by coordinating policy, messages, and accountability for clean water at the federal, state, and local levels. Several of our organizations are involved in the ongoing permit conversations with MDE.

Attached are our recommendations regarding the appropriate metrics to be included in the next iteration of Phase I MS4 permits. These recommendations emphasize developing a new restoration methodology for the next generation of Phase I MS4 permits. These recommended policies will strengthen the connections between the durable impervious surface area restoration requirements and stormwater volumetric focus of the current permits, with the pollutant reductions needed to meet the Chesapeake Bay TMDL and to address local water quality impairments. We seek to establish more relevant goals for the new permits and at the same time, ensure our local government and State Highway Administration (SHA) partners continue improving local waterways and the Chesapeake Bay.

We have been part of a series of meetings with you and your staff to discuss the future of these critically important permits. We thank you and Secretary Grumbles, Lee Currey, and Ray Bahr for your engagement during these discussions.

This submission offers an opportunity to find agreement on the core substance of the new permits. It also offers an important opportunity for MDE to respond to the deficiencies highlighted by the U.S. Environmental Protection Agency in their recent assessment of the performance of the Maryland stormwater sector in meeting expectations under the Bay TMDL.

We understand that recently resolved and continuing litigation over Maryland’s current Phase I MS4 permits create uncertainty, including on some of the topics we have been asked to help address. This has, in some cases, caused us to reconsider previous positions or to replace specific recommendations with somewhat vague suggestions that serve as temporary “placeholders”. We look forward to working with you and your staff to finalize the metrics and issues and to reach agreement on the monitoring and maximum extent practicable issues. For specific questions and concerns, please contact Caitlin Wall at wall@potomac.org.

Sincerely,

Anacostia Watershed Society

Audubon Naturalist Society

Audubon Society of Central Maryland

Baltimore Harbor Waterkeeper

Blue Heron Environmental Network, Inc.

Blue Water Baltimore

Chesapeake Bay Foundation

Choose Clean Water Coalition

Citizens for the Preservation of Middletown Valley

Clean Water Action

Conservation Montgomery

Envision Frederick

Frederick Zero Waste Alliance

Friends of Frederick County

Friends of Quincy Run Friends of Sligo Creek

Friends of Ten Mile Creek and Little Seneca Reservoir

Friends of the Nanticoke River

Interfaith Partners for the Chesapeake

Little Falls Watershed Alliance

Lower Susquehanna Riverkeeper

Maryland Conservation Council

Maryland League of Conservation Voters

Maryland Sierra Club

Mattawoman Watershed Society

Neighbors of the Northwest Branch

Potomac Conservancy

Potomac Riverkeeper

Potomac Riverkeeper Network, Inc.

Rock Creek Conservancy

Savage River Watershed Association

Severn River Association

Sierra Club, Catoctin Group

Southern Maryland Audubon Society

South River Federation

St. Mary’s River Watershed Association

WaterKeepers Chesapeake

Watts Branch Watershed Alliance

West Montgomery County Citizens Association

Wicomico Environmental Trust

CC: Benjamin H. Grumbles, D. Lee Currey, Raymond P. Bahr

Section 1: Principles for MDE’s third round of MS4 permits

Overview: With the Stormwater Management Act of 2007, and as an early and innovative adopter of water quality protection charges (WQPCs), MS4 permits, and other key tools, Maryland has long been a leader in stormwater management, addressing legacy impervious surface area and new development.

In the current second round of permits, jurisdictions were required to achieve an additional 20% impervious surface restoration using methodologies including Environmental Site Design (ESD), pond retrofits, and stream restoration. In addition, jurisdictions could implement various practices deemed “equivalent” to impervious surface restoration (as defined in the 2012 Accounting for Stormwater Wasteload Allocations and Impervious Acres Treated: Guidance for National Pollutant Discharge Elimination System Stormwater Permits - “Accounting Guidance”), such as septic system pumpouts and street sweeping.

Jurisdictions are continuously challenged by the increasing demand across the state for qualified contractors and the need for internal project management for this level of infrastructure investment. As a result, Montgomery County did not meet its 20% retrofit requirement and Prince George’s County is experimenting with a new tool, a large public-private partnership (P3) to meet its permit. These two counties, as well as several other jurisdictions (Anne Arundel County, Baltimore City, Baltimore County, Charles County, and Howard County), maintain robust WQPCs despite policy reversals in the General Assembly. Counties without any or insufficient dedicated local funding, such as Carroll County, Harford County, or Frederick County) are even further off track in meeting the 20% retrofit requirement.

Lessons learned from these past two rounds of permits led the Maryland stormwater community to prioritize the following principles. We recommend embedding these into the upcoming statewide template and into individual Phase I permits as developed over the next two years:

Prioritize durability o Uncertainty, such as budget fluctuations and climate change impacts, requires durable solutions to manage stormwater impacts over time. ESD and other forms of green infrastructure, such as tree plantings, grade contouring, and sustainable wet-pond retrofits that mimic natural wetlands, provide long-lasting solutions. These solutions mimic nature and use their own natural growth processes to adapt to changing conditions over time. Hard, engineered surfaces and treatments (e.g., street sweeping) intended to reduce pollutant loads can never be self-sustaining or adaptive, as they will always require continued capital inputs and maintenance. o Projects must also be legally durable, with instruments such as easements used to ensure that new infrastructure will remain in place for as long as it is designed to do so.

Restore both local waterways and the Chesapeake Bay o The challenge of meeting Chesapeake Bay Total Maximum Daily Load (TMDL) 2025 deadlines is immense, and continues to be a substantial driver of stormwater policy (rightfully so, as stormwater is the only growing pollution threat to the Chesapeake Bay). However, many jurisdictions lack local TMDLs for small streams, allowing jurisdictions to use equivalent-acre practices that benefit the Bay (i.e., septic system pumpouts) but don’t protect local waterways. Similarly, many jurisdictions do not use any local prioritizing or targeting in determining where to place their stormwater retrofits, providing benefit for the Bay but not strategically restoring local streams. Conversely, the impervious acreage standard is not quantitatively tied to the Wasteload Allocations (WLAs) required to actually meet the Bay TMDL. Treating impervious acreage alone is 4 an output, not an outcome, standard that does not provide substantial assurance of Bay restoration on a reasonable time frame. o Our metrics proposal (Section 2 of this document) addresses the need to simultaneously focus on local waterways and the Bay.

Reduce stormwater volume o The increased energy and velocity of stormwater over impervious surfaces may not be the ultimate cause of the pollutants that affect the Bay (primarily N, P, and TSS), but the volume of stormwater is certainly the vehicle for and the proximate cause of much of this pollution. Practices that promote stormwater on-site retention and infiltration, not just detention, best reduce volume impacts further downstream.

Use a treatment-train approach o As stormwater moves downhill, it gathers energy. Treating it as high up in the watershed as possible first, means that there will be less pressure further down the system during storm events. This can also contribute to restoring natural groundwater regimes disrupted by development, by allowing water to naturally filter into the ground throughout the watershed. A successful treatment-train approach requires MS4 permits to incentivize projects on privately-owned land, and perhaps even above the pavement itself (i.e., granting credit for spongy turf and native landscaping practices). Similarly, this principle implies that stream restoration should be closely coupled with a watershed-wide strategy that seeks to restore baseflow to the stream (and modulate peak flows, which could be harmful to the desired stability of the restoration itself). Finally, addressing pollutants farther upstream in the watershed often increases pollution reduction credits at the final downstream location (e.g., the Bay).

Incentivize innovation o Innovative jurisdictions, such as Montgomery and Prince George’s Counties, attempting new engineering practices (such as committing to very high levels of green infrastructure) or new business models (such as P3) should be supported and incentivized to continue testing these ideas for the benefit of other jurisdictions. With risk comes the possibility of failure. The MS4 permit template should include an incentive rubric that enables jurisdictions to reap the benefits of innovation: for example, bonus credit given for achieving gains above and beyond the minimum.

Provide structure, versatility, and flexibility o Every jurisdiction is different and has different needs. MDE should develop a permit template establishing a framework for desired outcomes that allows flexibility in how to achieve those outcomes; this flexibility should be incorporated into the permit text itself (not open to interpretation as part of the Accounting Guidance). For example, requiring each county to universally retrofit 20% of its impervious surface is inflexible and quite structured, but each county can choose from a very large menu of options on its own regarding how to achieve the 20%. This model results in MDE abdicating its role to enforce any of the other principles outlined above.

Proposal: o Develop a new restoration methodology for the next generation of Phase I MS4 permits to combine WLA reduction requirements with durable ESD restoration requirements to meet the Chesapeake Bay TMDL, local TMDLs, and stormwater volumetric reductions.

Methodology: 1) MDE conducts a gap analysis to identify pollution reduction requirements needed to meet WLAs (for the Chesapeake Bay TMDL and local TMDLs) for receiving waterbodies within the permittee’s jurisdiction that have been assigned to a Phase I MS4 permittee. These numeric reduction requirements should be explicitly stated in the permits. a) Rationale: MDE (rather than the permittees) developing specific numbers for each permit provides certainty for the permit holder, the regulator, and the public, while avoiding any delay or potential reason for delay by the jurisdiction associated with conducting their own calculations. b) For the Bay TMDL allocation, new tools from the Chesapeake Bay Program are available to use the Phase III WIP methodology, Phase 6 Bay Model, and new CAST and other Bay Program tools. For different pollutants in other TMDLs, there are various other modelling protocols. Rather than allowing different modelling protocols for different permittees, MDE should determine the best methodology for each pollutant and use that to determine the “gap” for each permittee. c) In addition, each permit holder was required to develop watershed assessments and restoration plans. These assessments and plans, and the data used to support them, should be used by MDE over the next 12 to 18 months to perform the gap analyses for meeting WLAs. d) Example: Based on a county’s existing plans and past performance, MDE may determine that 1 million additional pounds of pollution removal is required in order to meet the jurisdiction’s WLA. 2) Permittees must have 100% of the Bay TMDL (or local TMDLs for nutrients and sediment) practices and programs in place by the end of the permit term which includes the year 2025. a) Rationale: 2025 is the end date by which Bay TMDL reductions via WLAs must be achieved at 100%. The MS4 permit must include language prompting jurisdictions to have all practices and programs in place for whichever permit term includes the year 2025. b) For each numeric WLA assigned to each Phase I MS4 permit holder, MDE will use the (1) baseline year and load; (2) the current year load; and (3) the final target load. Then MDE will determine the reductions assigned to specific BMPs or projects that have been implemented to date (even if overall loads have increased across an MS4 county due to growth), as well as the gap between current loads (new baseline) and the final target. 3) Permittees must identify priority local watersheds to focus efforts and meet stormwater WLAs for local TMDLs on a defined timeframe as recommended by MDE in the gap 6 analysis described in Step 1 above.1 Under current permits, the permittees were required to complete watershed assessments that: “identify and rank water quality problems” in every local watershed; “specify pollutant load reductions benchmarks and deadlines” to meet the applicable stormwater WLAs; and, submit a restoration plan “for each stormwater WLA approved by EPA prior to the effective date of the permit.”2 Creating and implementing local WLA plans should be fairly straight-forward, as most of the work was already completed under the current permit. These priority identifications, gap analyses, and plans should be utilized to create enforceable restoration plans and compliance schedules for all local impaired watersheds. These plans must include an identified end date for achievement of local stormwater WLAs, selected using one of these methods: (a) Establishing an end date: ii) Option 1: require the permittees to hold local public hearings to establish an end date for each TMDL within a specified period of time. iii) Option 2: MDE suggests an end date based on the gap analysis, using as benchmarks at least one progress over time scenario. 1. Example: MDE could use the Bay TMDL 2025 scenario to establish a linear progress curve that plots annual progress until the end date is reached (e.g., a line starting at year 1 of the permit with a slope determined by various levels of annual progress). MDE could also develop several curves using alternative scenarios to present a range of options. 4) Permittees must meet a percentage of these reductions through durable ESD restoration techniques. a) Counties can fulfill multiple goals by targeting projects that provide multiple benefits and build more durable means to reach the TMDL or other water quality goals for the county, by emphasizing the use of ESD, and limiting the reliance on projects that provide purely temporary treatment of symptoms without lasting capabilities to improve water quality, such as street sweeping. b) Similarly, MDE should require a minimum percentage of ESD project types that yield durable benefits. For example, two permittees have established ESD goals (Prince George’s County at 100% and Montgomery County at 60%). i) Recognizing the need for a tailored approach based on each jurisdiction’s demographics and geography, the remaining permits should include a goal of 40% ESD as a minimum, with the ability to increase this over time. ii) Low-cost ESD projects, like planting trees and employing compost amendment to turf, should be encouraged and fully accredited in the Accounting Guidance. In addition, the Accounting Guidance should be revised in accordance with current best practice in this rapidly-changing field to ensure that its metrics and equivalencies are as up-to-date as possible and match the expectations included in the new CAST and other Bay models. c) Example: if the gap analysis reveals that the reduction needed to meet the WLA is 1 million pounds of pollution and the permit requires 40% of the reduction to be achieved through durable restoration (using ESD), then the gap to be achieved 1 We recognize that not all local impaired waterways have TMDLs. We caution MDE to remain aware of other waterways which are currently unregulated or without established TMDLs, and to continue to work with the EPA and local authorities to propose and designate local TMDLs accordingly. 2 See Phase I MS4 Permit Part IV.E(1)(b)(iii)-(v) and Part IV.E(2)(b). 7 through ESD is 400,000 pounds of pollution.3 These percentages of the WLA might vary depending on a county’s needs.

Discussion:

Inclusion of a requirement to meet WLAs with a minimum ESD requirement will support both water quality improvements and runoff reduction for local waterways and the Chesapeake Bay.  The WLA sets the ultimate reduction requirement and the ESD target becomes a technology-based means to achieving that target.  The challenge to introducing a water quality based numeric reduction standard in the new permit is that it is obviously only applicable where a WLA has been assigned to the MS4 permit. Ideally, every watershed would have a WLA for every pollutant for which the watershed is impaired. In reality, most watersheds have few TMDLs and even fewer numeric WLAs assigned to MS4 permits. (Incidentally, this is why additional promotion of ESD restoration is required – it reduces a variety of pollutants whether or not the watershed has a WLA or is considered impaired.)  Under this methodology, the ESD requirement in the next permit would not be a percentage of the county’s impervious surfaces (e.g. 20%) expressed in acreage but rather a percentage of the WLA (e.g. 40%) expressed in pollutant pounds that must come from projects and practices that specifically target stormwater volume and runoff through ESD.4

RE: Public Comment Invited to Help Develop State Plan to Improve Local Water Health in Chesapeake Bay Watershed Counties

The undersigned members of the Choose Clean Water Coalition submit the following comments to help inform the Commonwealth of Pennsylvania’s Department of Environmental Protection (DEP or Department) about how best to develop and implement the Phase III Watershed Implementation Plan (WIP).

It is no small secret that Pennsylvania is off-course in meeting its portion of the nutrient and sediment goals established in the Chesapeake Bay Total Maximum Daily Load (TMDL). In fact, “Pennsylvania is only about 10 percent of the way towards its 2025 nitrogen goal, and thus about 35 percent below its 2015 target.” (EPA Expectations for Pennsylvania’s Phase III WIP, April 27, 2017, p. 1)

The Department has solicited input regarding the planning, drafting, and implementation of the Phase III WIP. The undersigned members of the Choose Clean Water Coalition assert that in order to forge a path toward achieving local and Bay-wide water quality goals, the Commonwealth must:

● be realistic in its ability to provide funding for Department staff and restoration initiatives;● include more detail and documentation in the portions of the WIP related to agriculture;● include a frank assessment of whether or not the Department has the programmatic capacity necessary to implement the Phase III WIP and underlying restoration strategy;● include and engage local partners in the planning and implementation of WIP III, particularly conservation districts;● target financial and staff resources to the Southcentral tier of the state where agricultural pollution is most profound and where water quality improvements will have the most impact upon Bay restoration efforts;● increase the quantity of inspections completed;● require agricultural operations to fully implement their planning documents;● focus on installation of efficient and effective best management practices;● prohibit the land application of manure in the winter; and,● require all farming operations to submit reportable information related to farm practice and best management practices to DEP or the County Conservation District.

Funding

All parties involved understand that these are tough budget times in which we are operating. While there has been much talk about the state legislature passing a water usage fee or a new iteration of Growing Greener, neither is on the cusp of passage and should therefore not be relied upon when the Commonwealth is in the planning phase of WIP III. EPA expects the Commonwealth to “coordinate with EPA to perform resources workload model analyses in 2017 [to] determine if there are sufficient resources to implement the Commonwealth’s core state regulatory programs, and in 2018 to determine if there are sufficient resources to meet the Commonwealth’s Chesapeake Bay Phase III WIP implementation needs.” (EPA Expectations for Pennsylvania’s Phase III WIP, p. 5) EPA has also instructed the Commonwealth that any Chesapeake Bay funding provided by EPA for implementation of best management practices should only be applied to projects in priority watersheds in the Susquehanna and Potomac River watershed. (EPA Expectations for Pennsylvania’s Phase III WIP, p. 5)

Agricultural Sector

EPA has stated that it expects the Commonwealth’s Phase III WIP to contain more detail and documentation related to the Agriculture Sector because that sector is under backstop actions and oversight by EPA. EPA has also provided the Commonwealth with “state-specific expectations for jurisdictions and pollutant sectors which are under enhanced or back-stopped levels of federal oversight. . . .” (EPA Interim Expectations, p. 8) The Commonwealth’s Phase III WIP must address gaps in programmatic capacity aimed at addressing “the financial cost share, technical assistance, and regulatory oversight capacity to deliver agricultural conservation practices at levels consistent with those projected as needed to achieve their Phase III WIP agricultural sector load reductions.” (EPA Interim Expectations, p. 2) First and foremost, the Phase III WIP must document programmatic and policy changes needed to “[e]nsure compliance with and full implementation of state nutrient and sediment pollutant load reduction regulations.” (EPA Expectations for Pennsylvania’s Phase III WIP, April 27, 2017, p. 3) The Phase III WIP must also include a discussion of implementation incentives meant to encourage nutrient management planning and other priority best management practices. (EPA Expectations for Pennsylvania’s Phase III WIP, April 27, 2017, p. 3) The Commonwealth also needs to identify and address the Department’s lack of programmatic capacity and failure to track best management practices. (EPA Interim Expectations, p. 2) EPA notes that jurisdictions should consider corollary benefits of best management practices targeted for implementation, such as addressing other environmental issues, improving wetlands, increasing forest buffers in addition to water quality benefits of a practice. (EPA Interim Expectations, p. 3)

Local Engagement

EPA has stated quite explicitly that local partners must be engaged in both the WIP III planning process and implementation of strategies and practices. (EPA Interim Expectations, p. 3) “A significant and integral driver towards restoring local waters within the Chesapeake Bay watershed and meeting the goals of the 2010 Chesapeake Bay Total Maximum Daily Load (Bay TMDL) is active engagement and participation from local partners, such as local governments, conservation districts, planning districts, municipalities, federal facilities, watershed organizations, source water protection groups, private businesses, and local elected officials.” (Chesapeake Bay Program Partnership’s Phase III WIP Stakeholder Assessment Action Plan, 2016, p. 1) The Bay Program has stated that “the Phase III WIPs should help local partners understand their contribution to achieving water quality improvements and clearly articulate who will be held accountable for following through on Phase III WIP implementation.” (Chesapeake Bay Program Partnership’s Phase III WIP Stakeholder Assessment Action Plan, 2016, p. 1)

The Bay Program recommends including local partners in discussions and decisions about who will take responsibility for which load reductions, from planning to implementation. (Chesapeake Bay Program Partnership’s Phase III WIP Stakeholder Assessment Action Plan, 2016, p. 9) “A justification of the distribution should be provided in terms of equity, practicality, or cost-effectiveness.” (Chesapeake Bay Program Partnership’s Phase III WIP Stakeholder Assessment Action Plan, 2016, p. 10) The Bay Program has stated that merely allocating load reduction responsibility to a local partner is not acceptable. (Chesapeake Bay Program Partnership’s Phase III WIP Stakeholder Assessment Action Plan, 2016, p. 9) Within the Phase III WIP, the Commonwealth must “demonstrate collaboration” with and among it partners, not merely set directives for them to follow. (EPA Expectations for Pennsylvania’s Phase III WIP, April 27, 2017, p. 2)

In addition to engaging local partners, the Phase III WIP must describe in detail how local planning goals below the state-major basin scales will be achieved. (EPA Interim Expectations, p. 1) “A recommendation is to engage those at the county level first to gain an understanding of the process of determining their fair share of the allocation and what they need to do in order to meet that target.” (Chesapeake Bay Program Partnership’s Phase III WIP Stakeholder Assessment Action Plan, 2016, p. 9) The Choose Clean Water Coalition supports county level planning goals in PA, with emphasis on the Southcentral part of the state with respect to the agricultural sector. If agriculture continues to lag behind in meeting its sector goals, DEP should assign individual cap loads to agricultural operations. A permitting program would be needed to capture all farming operations, but this would be a fair and equitable way to ensure that all farms are doing their part to meet the sector load. DEP has suggested that it would consider such a program. (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 29)

To demonstrate commitment to inclusion of local partners, the composition of Pennsylvania’s Steering Committee for the Phase III WIP must be adjusted to include more local partners. The Choose Clean Water Coalition suggests that directors of Conservation Districts in the Southcentral tier of the state should be added to the Steering Committee, particularly those from Cumberland, Adams, York, Lancaster, and Lebanon Counties. Pennsylvania’s Steering Committee for the Phase III WIP is comprised completely of state agency or quasi-agency officials. There are no county or local government officials represented on the Commonwealth’s Steering Committee for the development of the Phase III WIP. (Pennsylvania Chesapeake Bay Phase 3 Watershed Implementation Plan (WIP), Steering Committee Meeting Minutes, April 3, 2017) Additionally, there is no representation on the Steering Committee by EPA. Failure to include EPA in discussions about how the Commonwealth could reach its Bay TMDL sector loads is a missed opportunity for guidance about whether the chosen path will be accepted by EPA as sufficient, especially in light of EPA’s enhanced oversight of the Commonwealth for both agriculture and stormwater.

Require Implementation of Planning Documents

In order to create the culture of compliance that the Department seeks from agricultural operations, DEP is going to have to require farm operators to implement their nutrient and sediment control plans. “Inspection and verification activities related to agricultural . . . sources have been a missing piece in creating a culture of compliance with existing regulatory requirements, and documenting pollutant reductions necessary to meet our targets. If these basic functions of BMP documentation and verification of compliance are not given their proper role, Pennsylvania’s performance in meeting water quality goals and Bay performance measures will continue to seriously lag.” (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 1) First and foremost, DEP must increase the number of agricultural inspections it is completing in order to address pollutant reduction deficiencies. (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 2)

EPA has set a goal for jurisdictions to inspect 10 percent of farms in the Chesapeake Bay Watershed annually, and the Pennsylvania Department of Environmental Protection has made a commitment to meet that goal within the Commonwealth’s portion of the Bay watershed. (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 2) In 2014, DEP completed 592 farm inspections which is only 1.8 percent of the farms in the Commonwealth’s portion of the Bay watershed. That is only 17.6 percent of EPA’s required level of inspections, well below the 3,360 that EPA anticipates being inspected annually. (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 13) DEP completed even fewer inspections of agricultural operations in 2016. In 2016, DEP and Conservation Districts had only completed approximately 500 inspections of farming operations. (Agriculture Initial Inspection Update, Presentation to Ag Advisory Board, April 27, 2017)

PA DEP’s strategy thus far for agricultural inspections, thus far, has been to require each County Conservation District Chesapeake Bay Technician under contract with DEP to do “50 Manure Management and Agricultural E&S Plan inspections, supplemented with an unfunded BMP data collection activity.” (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 9) PA DEP’s strategy has focused exclusively on whether farms have planning documents and locating and quantifying previously undocumented best management practices. DEP’s directive to Conservation District staff has been to focus on assuring “that everyone who is required to have plans to be in regulatory compliance has all the necessary plans applicable to their farming operation.” (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 9) Of the farms inspected in 2016, 64 percent had an administratively complete Manure Management Plan (MMP) while only 60 percent had an administratively complete Agricultural Erosion and Sediment Control Plan (Ag E&S Plan). (Agriculture Initial Inspection Update, Presentation to Ag Advisory Board, April 27, 2017)

DEP has completely ignored making a determination as to whether those plans have been implemented. DEP has specifically directed Conservation District staff to only seek confirmation that plans are in place, but staff should not seek to make a determination as to whether a farming operation is in compliance with those planning documents. This is completely contradictory to EPA’s directive to implement planning requirements and BMPs. DEP’s Standard Operating Procedure for farm inspections states that “[i]nspections do not include inspection of waste management systems, production areas, barnyards and other animal housing areas, or Best Management Practices (BMPs).” (Standard Operating Procedure, Chesapeake Bay Agricultural Inspection Program, SOP No. BCW-INSP-018, Version 1.0, Final, May 27, 2016, p. 14) The undersigned members of the Choose Clean Water Coalition believe it is the duty and obligation of DEP and Conservation District staff inspecting farming operations to make a determination about BOTH compliance with planning requirements AND implementation of MMP and Ag E&S Plans.

Geographic Targeting of Resources

The Commonwealth must target financial and staffing resources to specific geographic areas where “accelerated restoration efforts are needed and where local governments are receptive towards making a discernable difference in their community in meeting their WIP commitments.” (Chesapeake Bay Program Partnership’s Phase III WIP Stakeholder Assessment Action Plan, 2016, p. 4) As discussed at the PA Steering Committee meeting on April 3, 2017, “[t]argeting should factor into each workgroup’s discussion. Where BMPs are placed is as important as what, when[,] and how they are implemented.” (Pennsylvania Chesapeake Bay Phase 3 Watershed Implementation Plan (WIP), Steering Committee Meeting Minutes, April 3, 2017) Given the lack of financial resources for the restoration effort, the Commonwealth must focus funding and staffing where it can most effectively and efficiently “maximize nutrient and sediment pollutant load reductions.” (EPA Expectations for Pennsylvania’s Phase III WIP, April 27, 2017, p. 2) EPA has stated that the Commonwealth’s Phase III WIP should prioritize areas in the Susquehanna and Potomac River watersheds where restoration efforts will have the most impact on the Bay and where local water quality improvement can be achieved. (EPA Expectations for Pennsylvania’s Phase III WIP, April 27, 2017, p. 2) EPA has stated that the Commonwealth should utilize available information and tools that assist “in identifying sources of nutrients and sediment, determining appropriate practices that reduce pollution flows, and calculating costs associated with selected actions. . . .” (EPA Expectations for Pennsylvania’s Phase III WIP, April 27, 2017, p. 2) EPA acknowledges that programs and practices may need to be targeted to certain geographic areas in order to more effectively and efficiently reduce pollutant loads. (EPA Interim Expectations, p. 2). Accordingly, the Commonwealth should focus agricultural pollutant reduction programs and practices on the Southcentral tier of the state in which the majority of agricultural operations exist.

DEP’s compliance efforts thus far have been spread across the watershed fairly even, based upon location of Chesapeake Bay Technicians at Conservation Districts that have a memorandum of understanding to complete work on behalf of DEP. However, the effort should be more heavily targeted toward the Southcentral tier of the state, given the total agricultural loading to the Bay coming from that region. DEP should either contract for more Conservation District staff in those areas or target the efforts of its staff geographically to the Southcentral Regional Office with respect to agricultural enforcement. EPA has suggested that it would be appropriate for jurisdictions to contract with third parties to provide services that are central to the implementation of the WIP. (EPA Expectations for Pennsylvania’s Phase III WIP, April 27, 2017, p. 4) Thus, DEP could contract with third parties to perform agricultural data collection and reserve staff for farm inspections related to plan implementation or pollution related discharge events.

Additionally, Conservation District Watershed Specialists should be utilized to facilitate restoration projects in impaired waters. This adjustment to job responsibilities was previously discussed by the Department and would be a better use of resources to achieve water quality improvements in each county. DEP has stated that the Department should “[i]mplement targeted efforts in impaired watersheds where the cause listed is . . . agriculture . . . and where geography and land use are amenable to successful BMP implementation. . . . These watersheds should be in an area where there is an interested local group ready to take the lead on implementation.” (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 11-12)

In addition to targeted efforts by DEP, EPA should also continue to complete targeted watershed assessments within Pennsylvania. DEP has previously acknowledged that EPA could pursue one of two approaches in order to further Pennsylvania’s efforts to gain compliance with existing regulatory requirements for farming operations. In the first approach, “EPA would directly contract for field work to assess rates of compliance with state and federal requirements of animal Ag operations in Pennsylvania.” (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 20) In the second approach, EPA field staff would support 3-6 targeted watershed inspection efforts per year in areas with the highest nutrient loading rates for agriculture. (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 20) The undersigned members of the Choose Clean Water Coalition recommend that EPA continue to undertake targeted watershed assessments in the Southcentral tier of the Commonwealth.

Installation of Effective and Efficient Best Management Practices

The Phase III WIP should focus restoration efforts at agricultural operations on best management practices that are effective and efficient at controlling the loss of nutrients and sediment. DEP has committed to “putting new high-impact, low-cost BMP projects on the ground in watersheds that are currently impaired by agriculture. . . .” (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 2) DEP has suggested that it is appropriate for cost share programs and funding to be targeted to the most effective and efficient BMPs. DEP has stated, and the undersigned members of the Choose Clean Water Coalition agree, that it would be most beneficial for the jurisdiction to focus on installation and implementation of the following agricultural BMPs: cover crops, tillage (no-till and conservation till), manure transport, streambank fencing, and buffers. (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 27)

Winter Manure Applications

DEP should make programmatic and policy changes necessary to prohibit winter manure applications. It is well recognized that winter manure applications are not an effective or efficient use of nutrients as plants are not actively growing. It is also well recognized that nutrients are more likely to become unavailable to plants via runoff or leaching if they are not applied close in time to when plants are actively growing. EPA has also stated that Pennsylvania’s Phase III WIP must include a discussion of programmatic, policy, legislative, and regulatory changes needed for “[r]estrictions on manure application during winter months to protect drinking water sources and ensure local and Chesapeake Bay water quality protection.” (EPA Expectations for Pennsylvania’s Phase III WIP, April 27, 2017, p. 3) DEP has also suggested that winter manure spreading should be prohibited unless it is conducted under an approved and certified nutrient management plan. (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 27)

Mandatory Reporting of Data

DEP should make programmatic and policy changes necessary to require all farming operations to submit reportable information related to farm practice and best management practices to DEP or the County Conservation District. DEP has stated that “[c]ontinued reliance on voluntary reporting and costly estimation techniques of indeterminate accuracy result in continued high levels of state and Federal expenditure . . . and seriously hamper the Commonwealth’s ability to make informed policy decisions on which to take effective action.” (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 6-7) DEP in partnership with the Penn State Agriculture and Environment Center completed a farm survey in which they were able to collect data on approximately 7,000 farms within Pennsylvania’s part of the Bay watershed. However, there are no immediate plans underway to repeat this effort. DEP has previously noted the importance of establishing a mandatory reporting requirement for all farming operations, even the smaller farms. DEP has stated the need to “[e]stablish reporting requirements for Ag E&S and Manure Management Plans in the agriculture sector, and provide the CDs with tools (Practice Keeper) to capture these data.” (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 12) All farms should be required to provide information or plans detailing how a farming operation is meeting DEP’s regulatory requirements under the Clean Streams Law. “The data collected, coupled with verification by inspection and compliance assurance activities, will allow the Commonwealth to gather reportable, Bay model-countable data and will result in real improvement in water quality in Pennsylvania, and in the Chesapeake Bay.” (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 7)

Failure by the Commonwealth to draft and implement a Phase III WIP could lead to serious consequences by EPA, including, but not limited to: targeted EPA enforcement and compliance assurance inspections; establishing finer scale wasteload and load allocations; additional load reductions from point sources; and, nitrogen and phosphorus numeric water quality standards. The Commonwealth must use the Phase III WIP process to meaningfully engage with local partners to draft a plan in which resources are targeted to where they can be efficiently and effectively implemented to achieve water quality improvement, both local and Bay-wide.

If you have any questions or would like to discuss these comments further, please contact Kim Snell-Zarcone at (717) 648-0602 or kim@choosecleanwater.org.

Thank you for the opportunity to comment on the draft regulations which were distributed on June 7. The undersigned organizations, including some of the over 200 member organizations of the Choose Clean Water Coalition, respectfully submit the following comments in response to the Maryland Department of the Environment’s (MDE) proposed regulations to establish a Nutrient and Sediment Trading and Offset Program.

The Choose Clean Water Coalition

Choose Clean Water works in the seven jurisdictions, Delaware, the District of Columbia, Maryland, New York, Pennsylvania, Virginia, and West Virginia that make up the Chesapeake Bay region. The coalition’s members range in size and scope from national to regional to the most local level, but share the vision of vibrant clean rivers and streams in all of the Chesapeake region’s communities. One of the main objectives of the coalition is ensuring the Chesapeake Bay pollution limits, the corresponding state Watershed Implementation Plans (WIPs) and broader Clean Water Act protections continue to lay the groundwork for clean water in the region. The Coalition is interested in programs that have the potential to create cost-effective achievement of the goals set forth in the Chesapeake Bay Total Maximum Daily Load (TMDL) and Maryland’s Watershed Implementation Plan (WIP). The Coalition recognizes that the nutrient credit trading in the Chesapeake Bay watershed could be a cost effective mechanism to meet a portion of the required TMDL reductions. However, improperly designed programs increase the chance of water quality degradation, which ultimately means failure to meet water quality goals.

Comments on Draft Regulations

We commend MDE for listening to many of the concerns of several of our members and other stakeholders in creating regulations to comment on rather than trying to establish a trading program simply relying on guidance. We urge MDE to include more details in the regulations and make some changes to improve the regulations in order to make a robust trading program that will not endanger water quality in the Bay or at the local level.

1. The regulations must adhere to the EPA technical memoranda on nutrient trading.

The Environmental Protection Agency (EPA) has developed a series of technical memoranda that provide details on EPA’s expectations for nutrient trading programs designed to meet the Bay TMDL target allocations.[1] Specifically, the technical memoranda elaborate on Appendix S and Section 10 of the TMDL.[2] These are not merely guidance, but reflect the fundamentally important “expectations” of EPA, the Chesapeake Bay Program (CBP) partner responsible for ensuring accountability in the TMDL implementation. As you know, if Maryland chooses to ignore the memoranda, it runs the risk not only of forcing EPA to object to permits and reject credits or offsets for use in meeting TMDL allocations, but also of losing credibility in the eyes of other partners and the public.

2. The draft regulations must require the use of a 2:1 uncertainty ratio for all trades involving nonpoint credit generators.

The pollution loads from nonpoint sources of pollution, which by definition lack discreet “point” source outfalls, are very difficult to measure. When these nonpoint sources implement Best Management Practices (BMPs) to reduce pollution loads, the reductions are equally difficult to measure. In practice, these loads and pollution reductions are never measured, but are instead estimated. Nutrient credits generated by nonpoint sources are therefore inherently uncertain.

Adding to that basic uncertainty is the fact that most estimates of BMP effectiveness are generated from carefully controlled research experiments – not real-world demonstrations. The National Research Council (NRC) observed that:

BMP efficiencies are often derived from limited research or small-scale, intensive, field-monitoring studies in which they may perform better than they would in aggregate in larger applications . . . Thus, estimates of load reduction efficiencies are subject to a high degree of uncertainty.[3]

Note that the NRC authors are suggesting that the uncertainty is largely in one direction—BMP efficiencies are likely to overestimate actual nutrient removals. Indeed, the authors go on to say that “[p]ast experience . . . has shown that credited BMP efficiencies have more commonly been decreased rather than increased in the light of new field information.”[4]

In other words, BMP effectiveness estimates tend to overestimate pollution reductions. The Chesapeake Bay Program has modified certain BMP effectiveness estimates to address some, but not all, of this bias (to “remove unwarranted optimism”).[5] There has been some confusion on this point. For example, in 2011 the Maryland Department of Agriculture (MDA) stated that “[a]ny uncertainty associated with [BMPs] has already been taken into account by the CBP in the adoption of the stipulated efficiency.”[6] This is incorrect. Not all BMPs have been adjusted as described above, and not all sources of uncertainty have been addressed. According to EPA:

The CBP partnership BMP effectiveness values vary across the Chesapeake Bay watershed for conditions such as implementation date, growth rate of crops, and physiographic region. These adjustments generate BMP effectiveness values that are unbiased and realistic but not necessarily conservative because they were established using realistic estimates for load reductions that do not reflect additional sources of uncertainty, especially hydrological variability and operation and maintenance over the lifetime of BMPs. The uncertainty ratio recommended in this technical memorandum is designed partially to account for those additional sources of uncertainty.[7]

This means that there is a reasonable probability that a BMP will not generate the pollution reductions that it is given credit for. In order to avoid a net increase in pollution loads, EPA expects the states to use an uncertainty ratio “of at least 2:1” for trades between nonpoint credit generators and point source credit buyers.[8] In other words, a credit buyer hoping to offset one pound of new nitrogen load would have to purchase credits worth two pounds of nonpoint nitrogen. EPA allows for two possible exceptions to this policy. The first is where “direct and representative monitoring of a nonpoint source is performed at a level similar to that performed at traditional NPDES point source.”[9] The second is where land conservation is made “permanent” through a conservation easement or other deed attachment.[10]

In general, however, Maryland is required to apply a 2:1 ratio to all nonpoint-point trades. The draft regulation defines uncertainty ratios, but does not include any substantive language about them. We presume that this is an error in drafting – since MDE included a definition, we presume that the Department intended to include substantive language. Maryland’s most recent guidance manual[11] includes some language about uncertainty ratios, but misses the mark. Specifically, the manual requires a 2:1 uncertainty ratio for trades between nonpoint credit generators and “wastewater point sources,” but does not require a 2:1 ratio for trades between nonpoint credit generators and “stormwater point sources.”[12] This is an arbitrary distinction, and it is impermissible. The characteristics of the credit purchaser are irrelevant to the policy goal that a 2:1 uncertainty ratio is intended to serve. The uncertainty ratio is there to ensure that credits do not overestimate the pollution reductions achieved by the credit generator.

Virginia has adopted an uncertainty ratio requirement that comports with the TMDL and EPA’s expectations:

Credits used to offset new or increased nutrient loads under this subdivision shall be:

Subject to a trading ratio of two pounds reduced for every pound to be discharged if certified as a nonpoint source credit by the board pursuant to § 62.1-44.19:20 of the Code of Virginia. On a case-by-case basis the board may approve nonpoint source to source trading ratios of less than 2:1 (but not less than 1:1) when the applicant demonstrates factors that ameliorate the presumed 2:1 uncertainty ratio for credits generation by nonpoint sources such as:

When direct and representative monitoring of the pollutant loadings from a nonpoint source is performed in a manner and at a frequency similar to that performed at VPDES point sources and there is consistency in the effectiveness of the operation of the nonpoint source best management practice (BMP) approaching that of a conventional point source.

When nonpoint source credits are generated from land conservation that ensures permanent protection through a conservation easement or other instrument attached to the deed and when load reductions can be reliably determined.[13]

MDE should adopt the same language and apply it to all trades and offsets.

Furthermore, the same logic should apply to all trades involving nonpoint credit generators, including the sale of credits to nonpoint credit purchasers. Again, the uncertainty ratio is there to ensure that credits do not overestimate the pollution reductions achieved by the credit generator. The characteristics of the credit purchaser are irrelevant.

In short, MDE must require the use of a 2:1 uncertainty ratio for all trades involving nonpoint nutrient credits, including but not limited to trades between nonpoint credit generators and “stormwater point sources.”

3. Use a retirement ratio to ensure net improvement to water quality.

Trading programs must result in actual net improvements to water quality. The current draft regulations do not include a retirement ratio. They include a “reserve ratio”, which is not the same thing, because that does not ensure that there is a net reduction of pollution from any trade. This is sometimes called “additionality”. This is an EPA “expectation” set forth in its Technical Memoranda on Components of Credit Calculation.[14] We urge MDE to include a retirement ratio similar to the one that used to be a part of Maryland’s draft trading policy. MDE should require that 5% of credits generated by point sources, and 10% of credits generated by nonpoint sources, be “retired.” An earlier iteration of MDA’s nutrient trading policy included the following “fundamental principle”:

Trades must result in a net decrease in loads. To ensure this net decrease is achieved, 10 percent of the agricultural credits sold in a trade will be “retired” and applied toward Tributary Strategies or TMDL goals. The buyer will retire the credits following the transaction, and this determination should be reflected in the buyer/seller contract.[15]

At the January 8, 2016 trading symposium, MDE stated that a percentage of credits will be retired for the sake of net water quality benefit. We agree with this policy and urge MDE to ensure that these levels are included. As noted above, the current draft omits the retirement ratio and instead includes a ‘reserve ratio.’ The reserve ratio alone is insufficient for two reasons. First, it is not a retirement ratio, and does not ensure a net reduction in pollution loads. Second, at the end of the year there is nothing preventing MDE from distributing the reserved credits to noncompliant dischargers. This means that not only is there zero net pollution benefit, but there is also an incentive to polluters to fall short of their pollution reduction targets. We have no objection to applying a reserve ratio if MDE also incorporates the appropriate retirement ratio.

We recommend the following in words or substance:

“A retirement ratio will be applied to each trade, and represents the percentage of the total purchased credits to be retired towards net water quality benefit. The retirement ratio is 1.05 for point source credits and 1.1 percent for nonpoint credits. This means that credit purchasers will have to purchase 1.05 pounds of point source credits, or 1.1 pounds of nonpoint credits, before accounting for any other trading ratios, to offset one pound of pollution.”

4. Ensure that trading does not cause degradation of local waters or pollution hotspots.

We strongly support the intent of the language in section .05.B. The TMDL and EPA’s technical memorandum on local water quality both prohibit trades that would cause or contribute to local water quality impairments, including any exceedances of water quality standards.[16] We commend MDE for limiting trading to credits generated upstream of where the water discharge reaches impaired waters as a good practice to help ensure compliance with local water quality standards. However, section .05.B.1, as written, is too narrow and is inconsistent with section .05.B, the TMDL, and EPA’s technical memorandum. Section .05.B. prohibits trades that would cause or contribute to an impairment or to an exceedance of water quality standards. We would strongly urge MDE to consider language that would avoid creating pollution hot spots for local communities by requiring all trades be executed within a small watershed and where the credit generator is upstream of the purchaser. At a minimum, however, we would request the following.

Please change:

“Where necessary to ensure compliance with local water quality standards, the exchange of credits in an area within the Chesapeake Bay Watershed subject to an approved local TMDL for total nitrogen, total phosphorus, or total suspended solids with allocations more stringent than the Chesapeake Bay Watershed TMDL shall be limited to those credits generated upstream of where the discharge reaches impaired waters.”

To:

“Where necessary to ensure compliance with local water quality standards and to prevent local water quality impairments, the exchange of credits in areas where a credit purchaser may cause or contribute to a violation of water quality standards, an impairment identified by the Department under in the most recent biennial report, or a violation of a local TMDL, shall be limited to credits generated upstream of where the credit purchaser’s discharge reaches impaired waters.”

We also urge MDE to ensure that permittees, particularly MS4s, do not use trading to meet the entirety of their permit. Trading should not be allowed to offset more than 50% of a permittee’s pollution reduction requirements. This would ensure that local waters are not significantly degraded and also ensures that MS4s do not abandon all stormwater and polluted runoff reduction efforts within the boundaries of their jurisdictions.

5. Include additional details on enforcement: The regulations should ensure greater enforcement against fraud in the program and repeat offenders.

Since nutrient trading creates a host of new enforcement issues, the draft regulation must add significantly more detail on enforcement. Section 11 should outline specific enforcement measures that MDE would pursue in response to credit failure, willfully fraudulent trading or verification misrepresentations, and repeat offenders.

To begin with, the regulation should clearly and comprehensively state that credit purchasers are responsible for credit failure, and that a credit failure is a permit violation subject to Clean Water Act and state law enforcement. Section .08.A.1(d) states that “in the event of a default in a trade contract or the invalidation of credits, the MS4 permittee using those credits remains responsible for complying with MS4 permit requirements that would apply if the trade had not occurred.” This is a step in the right direction, but it does not go far enough and only applies to MS4 credit purchasers. The draft regulation should expand this language to state that permittees are subject to enforcement for permit violations in the cases of credit default, and apply that language to all credit purchasers.

Enforcement provisions should recognize that there will likely be minor infractions, or a failure of a BMP performance, that can be corrected expeditiously. They should authorize administrative compliance orders to address these and other violations, coupled with penalties for failure to comply.

In addition, we recommend that the regulations expand the enforcement sanctions for willfully fraudulent trading or verification, and for repeat offenders. A noncompliant verifier working with a willful counterfeiter of credits could jeopardize the integrity of the entire trading system and the health of the Chesapeake Bay. Greater enforcement mechanisms are necessary to reduce the temptation to falsify credit verification reports, particularly when the verifiers are third party entities.

Both the MDA and MDE should have the authority to impose on any noncompliant party a ban from the nutrient trading system of up to 10 years, as well as a lifetime ban for the most serious and/or repeat offenders. The MDA should also refer cases of fraud to the State Attorney General to take appropriate action under the state's general civil and criminal fraud laws.

Finally, we recommend the Department include a definition of “significant noncompliance” since this term is used in .04E.(1) to describe one basis for becoming ineligible to participate in the trading program.

6. The draft regulation must include more detail on certification and verification of credits

The draft regulation currently includes very little detail on verification, despite the fact that Maryland has adopted a comprehensive Best Management Practice verification plan.[17] Much of the verification under this plan will be done by MDA, but the plan also assigns numerous responsibilities to MDE (e.g., stormwater BMP and wastewater treatment plant verification, review and submittal to the Chesapeake Bay Program of MDA verification data, etc.). To the extent that the BMP verification plan may overlap with the nutrient trading regulation, MDE should incorporate the overlapping policies and language.

In addition, section .05.E(5) suffers from both substantive and drafting problems. First, section .05.E(5) states that “permanent credits are available in perpetuity and . . . may be verified annually.” This suggests that permanent credits may not be verified at all. Nothing is truly “permanent,” and MDE must prescribe some form of follow-up verification for any practice used to generate credits. Maryland’s BMP verification plan lays out a schedule for initial and follow-up inspections for virtually every kind of credit-generating practice.[18] EPA’s technical memorandum on verification simply says that the Agency expects “all credit generating projects and practices to be verified on an annual basis.”[19] MDE must ensure that the draft regulation is consistent with that plan.

Section .05.E(5) goes on to exempt two types of practices from the preceding language, but because the preceding language includes three clauses, it is unclear what the practices in .05.E(5)(a) and (b) are exempted from. If the language exempts (a) and (b) from the “may be verified annually” clause, then MDE is effectively stating that these two practices – converting septic systems to wastewater treatment plant hookups and land conversions with deed restrictions – cannot be verified after initial project completion. It makes no sense for MDE to tie its hands in this way. Since .05.E(5) does not require anything beyond initial verification on project completion, there is no reason to exempt any practices, and the word “except” and parts .05.E(5)(a) and (b) should be deleted.

7. Credit timing: adhere to EPA’s expectations

The draft regulation presents a conflicted set of requirements for the use of credits over time. On one hand, credits are generally valid for one year and cannot be banked for future years – a good policy (section .05.E(4)). On the other hand, the draft regulation contemplates “permanent credits” (.05.E(5)), and “[p]ermittees are required to secure credits in perpetuity or the term of their permit,” (section .05.E(6)), or for up to 20 years (section .07.A.(3)(b)(ii)). The draft regulations fail to explain how a permittee could “secure” credits for 20 years (or in perpetuity) when most credits are annual and expire a year after they are created.

This issue requires careful thought on MDE’s part. The Department may wish to require that long-term credit purchases be limited to long-term credit generating practices such as land conversion with deed restrictions. Alternatively, the Department will have to provide a mechanism by which permittees can “secure” credits in a way that the Department can validate and track. A simple contract between a permittee and a broker, where the broker promises to find annual credits every year for the next 20 years, is plainly insufficient.

Unfortunately, EPA has provided very little guidance on this issue, but the agency does expect that “[t]he procurement of credits should be documented in the permit, the fact sheet, and the administrative record. This includes documented assurances in place to show that credits have been secured from a project and/or practice certified by a person properly authorized to do so for the duration of the authorization to discharge.”[20]

MDE must adhere to EPA’s expectations in the following ways: (1) It must revise the draft regulation to specify that “securing” credits means lining up credits from specific projects and/or practices (not from brokers), and (2) it must include how the credits were secured in the relevant permit, fact sheet, and administrative record.

As written, the draft regulation would allow for “multiple facilities in a watershed” to form an association and obtain a single permit (a “bubble permit”) as co-permittees. This provision is not authorized under the Clean Water Act and has no basis for inclusion in nutrient trading regulations.

Moreover, even if a way could be found todesign a “bubble permit” that is consistent with the CWA, we have serious concerns about the impact of bubble permits, which create a laundry list of potential problems for local water quality, transparency, accountability, and enforcement, and must be avoided. For example, as drafted, the term “watershed” is not defined and could allow permittees anywhere within the Chesapeake Bay watershed to combine their discharge limits. Worse, the draft regulation establishes no restrictions at all on the number of owners forming an association. Theoretically, a single “bubble permit” could be written for all nutrient dischargers in Maryland’s Chesapeake Bay watershed.

Even a bubble permit involving a limited number of facilities poses significant permit-writing and enforcement questions. How will MDE ensure that there are no local water quality impacts at all locations? As a preliminary matter, how will MDE even conduct a “reasonable potential” analysis, which it must do pursuant to the Clean Water Act, to determine whether water Quality-Based Effluent Limitations are required? Will co-permittees report their discharges individually, as a group, or both? These are just a few of the questions that are not addressed in the draft regulations. MDE needs to initiate an entirely new rulemaking process and create a new set of regulations to address all of the complex issues and potentially dangerous consequences of bubble permitting. It is inappropriate to address this issue with five lines of text in an unrelated regulatory proposal that contains no reference to bubble permits in the Statement of Purpose.

9. Baselines must be better defined

Section .07.B(2)(d) is unclear. Subsection (d)(i) begins with “If greater than 6,100 pounds per year total nitrogen load cap and 457 pounds per year total phosphorus load cap.” It is unclear what is (or is not) greater than these load caps. It may be baselines, but it may also be “previously assigned 2004 Point Source Tributary Strategy” goals (section .07.B(2)(d)(i)). MDE should clarify.

That section goes on to describe how the baseline can be “no more than 50 percent of the amount that is above [the load caps].” This is unclear mathematically. Why would the baseline be half of the excess above the load caps? We strongly encourage MDE to clarify this language as well.

Furthermore, section .07.B(4) suggests that the baseline for significant industrial dischargers will be “based on a combination of historical performance levels, the amount of loading reductions already achieved since the initial baselines established in 1985, and establishment on a case-by-case basis of additional potential loading reductions.” This language is ambiguous and appears to be a statement of purpose, but is not appropriate in the context of a regulation. MDE should settle on a baseline definition and provide a precise statement for the benefit of the regulated community and public.

The baseline provisions must be rewritten to ensure full compliance with EPA’s Technical Memorandum on Establishing Offset and Trading Baselines (February 2, 2016). In particular, for any point source discharger, baseline must include compliance with any technology based requirements and with any Water Quality Based Effluent Limitations (WQBELs) established by the permit. For nonpoint source dischargers, baseline requirements must ensure compliance with any applicable load allocation “for the appropriate sector [of which the NPS is a member]…and…needed to facilitate improved environmental compliance with WQS.”[21] The load allocated to an individual NPS within a sector should be calculated to ensure that that source is doing its fair share to contribute towards achieving compliance with any applicable WQS so as to avoid inequitable burdens being placed on members of the sector whose baselines are established at a later date. While many if not most baselines will be established by MDA under its regulations, MDE will likely be called on to establish some of these, and its regulations therefore must include appropriate provisions to enable it to do so.

10. Do not allow Capacity Credit generation or Trading

The Maryland Water Quality Trading Advisory Committee rightly reached a decision that wastewater treatment plants should not be allowed to sell credits representing the extra capacity of their wastewater treatment plants. Not only does it not comport with Clean Water Act principles and the fundamentally important principle of additionality embedded in the TMDL,[22] it can also flood the market with ‘free’ credits that interfere with the creation of the viable marketplace that MDE is trying to create.

Several MS4s have already declared the intent to use this allowance as a loophole to get out of financing new stormwater projects if it becomes available. In subparagraph .08A.(1)(b)(iv), the regulations allow an MS4 to purchase capacity credits if other sources of credit generation do not “reasonably” meet the demand. This provision is both ambiguous and inappropriate. The entire purpose of these regulations is to create the rules for the marketplace. Not only does this open-ended provision not precisely define what is “reasonable,” it represents a very clear and bold loophole that could sabotage the marketplace and, more importantly, all of the past and present efforts to meet our commitment to the Bay TMDL and attain local water quality standards. By making capacity credits the trade of last resort, the Department is in essence declaring that (a) capacity credits are not an appropriate or effective means of reducing pollution; (b) the purchase of these undesirable credits is preferable to stimulating demand for new and effective pollution reduction projects and practices through market signals (higher prices); and (c) that giving pollution allowances away is preferable to the enforcement of existing pollution limits set out in Clean Water Act permits.

Wastewater treatment plants should only be able to generate credits if they invest in new projects or undertake other new initiatives that create additional pollution load reductions which would not otherwise occur. Credits fail this additionality test if, for example, they are not set at a baseline consistent with the nutrient load concentrations envisioned in state law (3 mg/L for nitrogen; and .3 mg/L for phosphorus) and created by wastewater treatment plant upgrade projects that have already been completed and financed with taxpayer dollars. We strongly urge MDE to create clear eligibility requirements for credit generation by wastewater treatment plants. These criteria could include, for example, the submission by the facility of an application created by the department that allows the proposed credit generator to describe what additional capital projects or operational changes the facility will undertake, an estimate of the load reduction to be achieved, and the formula that the applicant will use in this estimate and that the department will use to ultimately certify the number of credits created. The formula must ensure that credits are only certified for reductions that are based on (1) new or additional projects, investments, or actions taken; (2) reductions below the “enhanced nutrient removal” load concentration levels set by the General Assembly and codified in Title 9, Subtitle 16 of the Environment Article; and (3) load concentration levels which are, in fact, lower than historic levels for the facility.

11.Increase Transparency: Provide an opportunity for the public to comment on an application for credit approval when MDA or MDE receives a completed Certification and Registration Form.

The regulation needs to include more opportunities for transparency into the nutrient trading program. The MDA regulations give some guidance to what MDE should include in the regulations. These regulations stated in Sections 07.B and C the essential requirements that must be met before a credit can be certified. Section 07.F of those regulations specifies that credits may be “certified” once those requirements are met, and Section 07.G says that following approval each credit shall be given a “unique registration number” and registered. This or similar language should also be included for other nonagricultural credit generation.

There are also additional components MDE should add to this regulation. After credits are certified, include a system for tracking each credit, as required by the EPA Technical Memorandum on Certification and Verification of Offset and Trading Credits in the Chesapeake Bay Watershed.[23]

Furthermore, public notice and comment should be required when the MDA or MDE receives a completed Certification and Registration Form, along with the other documents and information required by Sections 07.A and .B. of the MDA trading generation regulations. Without the publication by the department of an announcement of the credit request and a reasonable period for comments, there is no meaningful transparency in the program. Requiring public notice and comment is the only opportunity for interested parties to review the proposed credit(s) and supporting documentation and evaluate and comment on whether: (1) the applicant has properly complied with baseline requirements, (2) the requirements that the Nutrient Management Plan and Soil Conservation and Water Quality Plan be fully implemented are demonstrated, (3) the effectiveness and likely duration of the credits have been properly calculated, (4) whether calculations requiring application of the Maryland Nutrient Trading tool have been properly performed and documented, and (5) the other information required by Section 07.A and B has been provided by the applicant.

In addition, MDA and MDE should both receive a copy of the application no later than the date of the public announcement. MDE has an important interest in any measure which could affect achievement of TMDL goals and water quality standards. In most, if not all cases, any credit purchased and used by a point source discharger will be incorporated into an NPDES permit, which is issued by MDE. In cases where a credit application is submitted to MDA, MDE should have an opportunity at this time to review the credit application and provide comments to MDA. In the event MDE believes there is anything unsatisfactory in the credit, the correction should be addressed before the credit has been approved, registered, purchased, and included with a permit application to MDE.

The MDA regulations in Section 08.D appear to recognize the important role played by MDE because they require that MDE be provided with a copy of the verifier’s report generated after an annual verification inspection. However, MDE regulations should also require the original application be shared with MDE as well to assist in verification.

These important elements of the process can be effectively accomplished by adding a new subsection C under Section .07. The existing Subsection 07.C should then be designated as 07.D. The new Section 07.C should provide, in words or substance, as follows:

C. Promptly after a determination by MDE or MDA that an application for approval and registration of one or more credits includes all of the documentsspecified in this Section 07, and Sections 08, 09 and 10, as applicable,, the Department shall post on its website an announcement ofthe application and identifying a location where the application and related documents can be inspected and copied, and allowing a time for public comments on the application of not less than 30 days following the date of publication of the announcement. In addition, not later than the date of publication, MDE or MDA, as appropriate, shall provide the other with a copy of the application and supporting information.

Finally, the Department should get copies of disputed information reports.Section 09.E of the MDA regulations allows the owner or operator of a facility to “dispute information in” the verifier’s report by filing a statement of written concerns with the MDA within 30 days of his or her receipt of the report. MDE should require that a copy of the written concerns be provided to MDE at the same time as MDA. MDE will have received the verifier’s report, and should be advised if there is a challenge to it by the owner/operator.

We appreciate the opportunity to submit these comments. We would be pleased to discuss any aspect of them and answer any questions. Please contact Chante Coleman, director of the Choose Clean Water Coalition, with any questions, comments, or concerns.

The undersigned members of the Choose Clean Water Coalition are concerned about federal support for programs that are essential to maintaining and restoring clean water in the Chesapeake Bay watershed. For that reason, we are concerned about the funding cuts to the Chesapeake under the Regional Conservation Partnership Program (RCPP).

There are 87,000 farms in the six-state Chesapeake region. Those that are well run protect their water resources and add much to our landscape, environment, and economy. We want to ensure that these responsible farms and farmers remain economically viable. Nutrient and sediment pollution from farms is by far the largest source of contamination in the Chesapeake Bay and its tributaries. Recognizing this, the 2008 Farm Bill established the Chesapeake Bay Watershed Initiative that provided $238 million over five years to producers in the region to apply conservation practices on their farms that would help to restore and/or protect water quality.

All of the conservation programs under the Farm Bill, including the RCPP, are critical for both farmers and clean water throughout the Chesapeake Bay region and we support full funding for them. These programs are essential for agricultural operations to meet state and federal goals that address both farm health and water quality.

The Agriculture Act of 2014 (the 2014 Farm Bill) replaced several regional programs, including the Chesapeake Bay Watershed Initiative with the RCPP. The RCPP was designed to focus resources on assisting producers to voluntarily apply conservation practices on agricultural working lands to improve water quality in high priority watersheds, such as the Chesapeake watershed. The Choose Clean Water Coalition supported this approach. The entire Chesapeake Bay watershed was designated as one of eight national priority Critical Conservation Areas, and we applauded that decision. However, the amount of RCPP funds that were eventually provided for this effort fell well short of what anyone expected a “priority” area to receive.

The five years of funding for the Chesapeake region under the Chesapeake Bay Watershed Initiative of the 2008 Farm Bill provided an average of $47.6 million every year for conservation practices that benefit water quality. During the first four years of the RCPP, the Natural Resources Conservation Service allocated a total of only $43.18 million to projects all, or partially, in the Chesapeake Bay watershed. In addition, NRCS has taken 25% of each project allocation for “technical assistance and administration”, further reducing the amounts actually available to farmers. While we support using these funds for technical assistance, we do not support taking dollars which Congress intended for conservation and using them instead for “administration” or overhead. Recipients also have to provide a dollar for dollar match for the entire amount prior to the deduction of the 25% administrative fee.

This significantly reduced level of support for conservation has undercut the U.S. Department of Agriculture’s (USDA) commitment to the Chesapeake. The $43.18 million over the first four years of the RCPP has provided 22% of the funds that were previously allocated to conservation in the Chesapeake region under the 2008 Farm Bill – an average of $10.8 million annually. Calculating the 25% for “administration” reduces the annual allocation actually available for conservation in the Chesapeake from the RCPP to $8.1 million annually. This is a much more dramatic cut to efforts by farmers in the Chesapeake Bay watershed to improve water quality and habitat – and is only 17% of the funds delivered to the watershed for conservation under the 2008 Farm Bill.

These large funding reductions under the RCPP, as it has been administered, have resulted in a steep cut to conservation that is critical to maintain and restore clean water to the rivers and streams throughout the Chesapeake Bay region, and for the Bay itself. These programs are essential for the agricultural sector to implement the voluntary projects needed for clean water in our rural areas.

We are deeply disappointed that the RCPP has so shortchanged the Chesapeake region. There had been no shortage of applications by farmers in the six-state Chesapeake Bay watershed to apply for funds under the 2008 Farm Bill, and there is still no shortage of producers and others willing to act under the 2014 Farm Bill.

We strongly urge you to treat the Chesapeake as a true Critical Conservation Area under the 2014 Farm Bill, and to better allocate future funds to reflect that. USDA has an obligation under the voluntary 2014 Chesapeake Watershed Agreement, which USDA signed as a member of the Federal Leadership Committee for the Chesapeake Bay to help meet the goals of the Agreement and the RCPP should be its primary tool to obtain success.

Thank you for your consideration of this important request that is critical to clean water throughout the Chesapeake Bay region. Please contact Peter J. Marx at 410-905-2515 or peter@choosecleanwater.org with any questions or concerns. Thank you.

The undersigned members of the Choose Clean Water Coalition request continued support for clean water in the Chesapeake Bay watershed through the Agricultural Act of 2014’s (2014 Farm Bill’s) conservation programs. There are 87,000 farms in the six-state Chesapeake region; those that are well run protect their water resources and add much to our landscape, environment and economy. We want to ensure that these responsible farms and farmers remain economically viable. Stopping cuts to these conservation programs is critical to maintain and restore clean water to the rivers and streams throughout the Chesapeake Bay region, and for the Bay itself. These programs are essential for regulated agricultural operations to meet federal regulations under the Clean Water Act and help farmers meet state regulations that address both farm health and water quality.

We urge you to maintain full funding for mandatory agricultural conservation programs in Fiscal Year 2018. The 2014 Farm Bill set us on a new path toward clean water in our region, but only if key conservation programs are funded as Congress intended. With the support of much of the conservation community and clean water advocates, the 2014 Farm Bill eliminated nearly a dozen conservation programs (including the Chesapeake Bay Watershed Initiative) and reduced mandatory funding overall to save American taxpayers approximately $6 billion.

Two-thirds of the 18 million people in the Chesapeake region get the water they drink directly from the rivers and streams that flow through the cities, towns and farms throughout our six state, 64,000 square mile watershed. Protecting and restoring clean water is essential for human health and for a robust regional economy. Much of the work and funding necessary to achieve and maintain clean and healthy water in this region would be accomplished through the Farm Bill’s new Regional Conservation Partnership Program (RCPP). We urge you to provide full funding for mandatory conservation programs that are critical to maintaining a fully funded RCPP. In particular, we urge you to fund the Environmental Quality Incentives Program at $1.65 billion to help willing producers implement conservation practices on their farms.

In May 2014, the Chesapeake Bay Watershed was designated as one of eight Critical Conservation Areas under the new RCPP. For the first four years of RCPP funding, the Chesapeake received $43.18 million for projects all, or partially, in the Chesapeake Bay watershed – this is an average of $10.8 million annually. This is a precipitous drop from the five years of funding from the Chesapeake Bay Watershed Initiative where our region’s producers received an average of $47.6 million annually for conservation practices. This is a huge shortfall for conservation in our region and any further cuts to the RCPP will exacerbate this funding drop off. We urge you to maintain the 2014 Farm Bill’s negotiated mandatory funding levels for all conservation programs, including the RCPP.

In order to follow a common sense path to maintain economically viable well run farms and to have healthy local water and a restored Chesapeake Bay, which is critical for our regional economy, we request full funding for all conservation programs in the Farm Bill for Fiscal Year 2018.

Thank you for your consideration on this very important request to maintain funding for these programs which are critical to both our agricultural community and for clean water throughout the mid-Atlantic region. Please contact Peter J. Marx at 410-905-2515 or peter@choosecleanwater.org with any questions or concerns.